James  Ik.  moffitt 


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THE 


FEDERAL  GOVERNMENT 


OP 


SWITZERLAND 


AN   ESSAY   ON    THE    CONSTITUTION 


BY 


BERNARD  MOSES,  Ph.  D. 


PROIESSOR     OF     HISTORY     AND     POLITICAL     ECONOMY, 
UNIVERSITY   OF    CALIFORNIA 


OAKLAND,   CALIFORNIA  : 

PACIFIC    PREvSS    PUBLISHING    CO., 

SAN    FRANCISCO:     l8    POST    STREET.       NEW  YORK:  43  BOND  STRBBT, 
LONDON:  4S  PATERNOSTER  ROW. 

1889 


s^ 


COPYRIGHT,    1889, 

BY    BEDRN"ARD     MOSES. 

All  Rights  Reseti>ed. 


Pacific  Press  Publishing  Company,  Oakland,  Cat. 


ml 


CONTENTS. 


I.  Introductory i 

II.  Antecedents  of  Swiss  Federalism      -         -  lo 

III.  The  Distribution  of  Power         -        .        .  jg 

IV.  The  Legislature m 


V.  The  Executive 


VI.  The  Judiciary 140 

VII.  Foreign  Relations        -        -        -        -        .  164 

Till.  Internal  Relations 178 

IX.  The  Army  and  the  Finances       -        -        -  189 

X.  Rights  and  Privileges 203 

XI.  The  Common  Prosperity       -  -        .  226 


CHAPTER  I. 
INTRODUCTORY. 

The  territory  of  Switzerland  is  not  wholly  in- 
cluded within  any  natural  boundaries.  The 
canton  of  Schafifhausen  lies  north  of  the  Rhine; 
on  the  east  Graubiinden  is  separated  from  Tyrol 
and  Italy  only  by  an  arbitrary  line;  on  the  south 
Ticino  extends  beyond  the  Alps;  and  on  the 
west  there  is  no  natural  boundary  coinciding 
with  the  political  boundary.  It  is  a  land  of 
marked  peculiarities,  the  most  conspicuous  of 
which  are  its  elevation,  its  broken  surface,  and 
its  abundant  water.  Its  elevation  ranges  from 
646  feet  at  Lake  Maggiore,  to  15,217  feet  on 
Monte  Rosa.  Within  two  degrees  of  latitude  it 
embraces  the  climate  of  thirty-four  degrees.  It 
occupies  a  large  part  of  the  summit  region  of 
Europe,  although  Mont  Blanc,  the  highest  point 
of  this  region,  stands  without  its  border.  Of  the 
total  area  of  Switzerland,  15,964  square  miles, 
that  portion  of  the  surface  which  has  an  eleva- 

(0 


2  GOVERNMENT  OF    SWITZERLAND. 

tion  less  than  i,ooo  feet  is  about  two  per  cent, 
of  the  whole.  Between  i,ooo  and  2,500  feet 
there  is  an  amount  of  the  surface  equal  to  37  per 
cent,  of  the  whole;  between  2,500  and  4,000  feet, 
21  per  cent;  over  4,000  feet,  34  per  cent.;  while 
six  per  cent,  of  the  whole  surface  is  covered  with 
snow-fields  and  glaciers.  By  another  classifica- 
tion, 11,443  square  miles  are  set  down  as  "pro- 
ductive," and  4,521  square  miles  as  "  unproduc- 
tive." The  greater  portion  of  the  territory  is 
embraced  within  two  mountain  masses,  the  Jura 
extending  from  Geneva  to  Schaffhausen,  and 
the  Alps  occupying  the  southern  cantons.  The 
Jura  is  composed  of  a  number  of  parallel  ridges 
with  intervening  valleys.  The  Alps,  on  the  other 
hand,  are  made  up  of  one  great  ridge  supported 
by  far-reaching  buttresses.  The  valleys  which 
lie  between  these  buttresses,  particularly  those 
north  of  the  main  ridge,  are  specially  the  scene 
of  the  characteristic  life  of  the  Swiss.  But  the 
most  remarkable  feature  of  this  mountain  region 
is  its  abundant  water  sources.  Within  a  small 
district  about  the  St.  Gothard,  arise  important 
streams,  which  flow  into  four  distinct  seas.  The 
Rhine  passes  first  into  Lake  Constance,  and 
thence  into  the  North  Sea.  The  Rhone  rushes 
into  the  Lake  of  Geneva,  which  sends  it  forth 
purified  to  the  Mediterranean.  The  Ticino, 
gathering  on  the  southern  slope  of  the  Alps, 


INTRODUCTORY  3 

joins  the  Po  and  is  carried  on  to  the  Adriatic ; 
while  the  Inn  falls  into  an  eastern  valley,  and 
then,  in  union  with  the  Danube,  is  lost  in  the 
Black  Sea.  From  this  point  of  view  Switzerland 
appears  like  a  great  reservoir,  whose  refreshing 
waters  are  sent  to  the  four  quarters  of  Europe. 

The  population  of  the  territory  now  under  the 
dominion  of  the  Swiss  Republic  has  undergone 
fewer  changes  through  migration  or  foreign  inter- 
ference than  that  of  most  lands  of  Western  civ- 
ilization. It  may,  therefore,  be  contrasted  with 
those  societies  which  have  grown  up  in  America 
from  English  or  Spanish  settlements.  In  the 
one  case,  there  has  been  growth  from  pre-historic 
stock  without  serious  disturbing  influences.  In 
the  other  case,  the  societies  have  been  formed 
from  elements  whose  later  environment  has  had 
little  in  common  with  their  earlier  surroundings, 
and  under  conditions  where  the  force  of  ancient 
traditions  has  been  weakened  by  long  migration. 
In  the  one  case,  the  isolated  communities  have 
been  crowded  together  by  the  external  pressure 
of  hostile  states.  In  the  other  case,  the  individ- 
ual settlements  have  been  drawn  together  by  the 
desire  to  satisfy  their  economic  wants  under 
more  favorable  conditions.  In  the  one  case,  lib- 
erty and  equality  have  been  fought  for  in  the 
face  of  absolutism  and  aristocratic  tendencies. 
In  the  other  case,  particularly  in  the  British  set- 


4  GOVERNMENT  OF    SWITZERLAND. 

tlements,  liberty  and  equality  were,  in  a  certain 
sense,  imposed  upon  the  people  by  the  circum- 
stances of  colonial  life.  Yet,  however  favorable 
to  liberty  and  equality  may  have  been  the  con- 
ditions of  colonial  life  in  some  parts  of  America, 
there  existed  in  other  parts  a  superior  counter- 
acting force  in  the  despotic  traditions  of  the 
mother  country.  This  was  particularly  true  with 
reference  to  the  Spanish  colonies  which  were 
planted  in  the  New  World  in  the  sixteenth 
century.  Of  these,  Mexico  is  a  conspicuous 
example.  Although  now  in  the  list  of  federal 
republics,  yet  it  could  not  claim  even  nominal 
independence  and  liberty  till  after  three  centuries 
of  uncompromising  despotism.  Most  English 
colonial  dependencies  have  worked  their  way  to 
prominence  through  a  struggling  age  of  feeble- 
ness, and  in  the  effort  have  prepared  themselves 
to  win  and  defend  their  liberty.  But  the  Span- 
ish dependencies  have  been  from  the  outset 
equipped  with  ample  legal  machinery,  and  been 
controlled  and  supported  by  the  sagacity  and 
power  of  the  monarch,  and  in  this  state  of  com- 
plete subordination  have  lost  much  of  the  self- 
assertion  and  self-control  which  are  requisite  to 
the  character  of  a  free  people. 

Switzerland  and  the  British  colonies  in  Amer- 
ica were  predetermined  to  federation  by  their 
geographical    positions.     Switzerland,    particu- 


INTRODUCTORY.  S 

larly  that  portion  of  it  in  which  was  formed  the 
original  union,  is'composed  of  valleys  separated 
from  one  another  by  mountains  so  far  impassi- 
ble as  to  limit  to  the  inhabitants  of  each  valley 
the  development  of  the  community  sentiment. 
The  local  independence  acquired  by  the  several 
isolated  communities  made  them  unwilling  for 
centuries  to  join  any  union  closer  than  that  in- 
volved in  an  offensive  and  defensive  alliance; 
and  when  finally  a  strictly  federal  power  was 
created  by  the  adoption  of  the  constitution  of 
1848,  it  was  done  in  opposition  to  the  vote  of  the 
cantons  of  Wallis,  Thurgau,  Appenzell-Interior, 
Schwyz,  Unterwalden,  Uri,  and  Zug.  The  fed- 
eral form  was  realized  under  the  force  of  exter- 
nal pressure  and  the  need  of  a  common  internal 
administration,  but  the  consolidation  of  all  the 
cantons  into  a  centralized  State  was  quite  out  of 
the  question. 

In  that  portion  of  America  which  became  the 
territory  of  the  United  States,  "  the  long  stretch 
of  coast  facing  Europe,  furthered  the  establish- 
ment of  a  series  of  settlements  independent  of 
one  another  and  only  subordinated  to  a  distant 
power.  The  considerable  independence  which 
the  several  colonies  thus  acquired  exerted  a 
powerful  influence  to  make  the  national  govern- 
ment a  federal  government;  for  they  had  so  long 
pursued  a  separate  and  individual  existence  that 


6  GOVERNMENT  OF    SWITZERLAND. 

no  closer  union  was  immediately  possible.  The 
two  alternatives  which  the  makers  of  the  Consti- 
tution had  to  face  were  federation  and  anarchy."* 
Of  important  existing  republics,  Switzerland 
alone  antedates  the  Protestant  Revolution,  and 
is  consequently  the  only  one  that  has  lived 
through  the  period  in  which  religious  wars  were 
a  part  of  the  order  of  the  day.  The  effect  of 
this  revolution  in  Switzerland,  as  in  Germany 
and  France,  was  to  form  a  new  ground  of  party 
differences,  and  to  divide  the  Confederation  into 
two  hostile  camps.  The  policy  adopted  was  es- 
sentially that  of  Germany,  according  to  which 
each  State  enforced  uniformity  of  worship. 
"  The  rights  of  conscience  were  ignored  by  Cath- 
olics and  Protestants  alike."  "■'  The  old  pugnac- 
ity of  the  Swiss  came  once  more  to  the  front, 
and  to  them  a  religion  that  was  worth  having 
appeared  worth  fighting  for.  The  religious  con- 
troversies, which  arose  from  the  revival  of  inter- 
est in  the  doctrine  of  peace  and  good-will  towards 
men,  threatened  the  unity  of  the  Confederation 
and  filled  the  land  with  the  uproar  of  a  civil  war. 
The  Catholic  cantons  stood  in  continued  antag- 
onism to  the  growth  of  a  central  power,  but  ulti- 

^"Data  of  Mexican  and  United  States  History,"  by  the 
present  writer,  in  ''Papers  of  the  California  Historical  Society," 
I,  p.  17. 

"May  "Democracy in  Europe,"  1,382. 


INTRODUCTORY.  7 

mately  the  patriotic  desire  for  a  more  complete 
union  prevailed,  and  a  federal  government  was 
established  under  which  both  Catholics  and  Prot- 
estants live  without  serious  friction. 

The  conglomerate  character  of  the  Swiss  pop- 
ulation, composed  of  representatives  of  the  Ger- 
man, French,  and  Italian  peoples,  has  made  it 
difficult  to  bring  all  parts  to  co-operate  towards 
a  common  national  end.  The  fact  that  these 
representatives  of  different  peoples  have  contin- 
ued in  separate  groups,  each  within  its  own  ter- 
ritory, and  speaking  its  own  language,  has  made 
the  growth  of  a  national  sentiment  slower  than 
it  might  have  been  had  all  been  thrown  together 
into  a  common  society  and  compelled  in  the 
course  of  time  to  use  a  common  language.  At 
present  German  is  spoken  in  fourteen  cantons 
and  parts  of  others;  French  wholly  in  three  can- 
tons and  in  parts  of  three  others,  while  Italian  is 
confined  to  the  canton  of  Ticino  and  a  part  of 
Graubiinden.  To  state  the  relations  between 
these  groups  in  another  way,  there  are  1,352 
German  communes,  945  French,  and  291  Italian. 
Besides  these  there  are  118  communes  in 
Graubiinden  where  the  Romansch  language  is 
used.  Only  German,  French,  and  Italian,  how- 
ever, are  regarded  as  official  languages,  and  in 
these  three  all  the  federal  laws  are  published, 
and  they  may  all  be  used  in  the  transaction  of 


8  GOVERNMENT  OF   SWITZERLAND. 

federal  business,  whether  in  the  assemblies,  in 
the  council,  or  in  the  courts.  Moreover,  all 
must  be  represented  in  the  Federal  Council. 
The  Romansch  language,  on  the  other  hand,  is 
not  an  official  language,  and  is  seldom  employed 
in  the  affairs  of  the  federal  government  Not 
only  as  it  regards  their  language,  but  in  a  gen- 
eral way  also  as  it  regards  their  manners  and 
customs,  have  the  several  cantons  maintained 
their  individuality. 

While  in  Switzerland  the  representatives  of 
the  German,  French,  and  Italian  peoples  have 
preserved  their  peculiar  characteristics,  to  a  cer- 
tain extent,  by  remaining  territorially  separated, 
in  the  United  States  there  has  been  a  mingling 
of  peoples  on  the  same  territory,  and  there  is  al- 
ready manifest  a  tendency  to  mould  those  of 
English,  Scotch,  Irish,  German,  and  Scandina- 
vian stock  into  a  new  national  product.  But  in 
the  Southern  States  of  the  Union,  the  presence 
of  the  negro  introduces  a  problem,  of  which  the 
population  of  Switzerland  gives  no  hint. 

The  recognition  of  members  of  different  races 
as  high  or  low,  as  worthy  or  unworthy,  which 
prevails  in  Mexico  and  the  United  States,  is  al- 
together wanting  in  Switzerland.  If  there  ex- 
ist class  distinctions,  they  are  such  as  may  arise 
in  a  homogeneous  society  under  the  conditions  of 
modern  civilization,  or  they  are  a  survival  from 


INTRODUCTORY.  9 

the  feudal  age.  They  are  not  such  as  proceed 
from  the  co-existence  in  the  population  of  mem- 
bers of  different  races  regarded  as  inferior  and  su- 
perior. The  illiteracy  and  general  ignorance, 
moreover,  which  characterize  a  considerable  part 
of  the  population  both  in  Mexico  and  the 
United  States,  are  also  wanting  in  Switzerland; 
in  fact,  in  no  country  of  the  world  are  the  affairs 
of  education  administered  more  zealously  or  with 
greater  efficiency.  The  problem  of  republican 
government  is,  therefore,  simpler  in  Switzerland 
than  in  America,  in  spite  of  the  proximity  of 
the  Swiss  to  the  monarchial  rule  of  European 
states. 


CHAPTER  II. 

ANTECEDENTS  OF  SWISS  FEDERALISM. 

Among  the  many  small  republics  of  Europe 
which  came  into  existence  in  the  popular  revolt 
from  feudalism,  those  of  Switzerland  are  con- 
spicuous for  the  thoroughness  and  persistence  of 
their  republicanism.  The  lands  whose  union 
was  the  beginning  of  the  Swiss  Confederation 
held,  before  their  alliance,  a  position  in  relation 
to  the  empire  not  greatly  unlike  that  which  the 
British  colonies  in  America  sustained  towards 
the  government  of  England.  They  acknowl- 
edged the  supremacy  of  the  empire,  and  it  was 
no  part  of  their  early  purpose  to  renounce  this 
allegiance.  The  British  colonies,  also,  in  their 
first  movement  towards  union,  did  not  propose 
to  sever  their  connection  with  the  supreme  gov- 
ernment; they  sought  to  control  those  affiairs 
which,  from  their  point  of  view,  appeared  to 
concern  merely  themselves.  The  conflicts  which 
arose  in  the  two  cases  had  certain  features  in 

(10) 


ANTECEDENTS  OF  SWISS  FEDERALISM.      1 1 

common.  In  each  case  it  was  a  struggle  between 
the  spirit  of  feudal  domination  on  the  one 
side,  and  the  spirit  of  democracy  on  the  other. 
The  primitive  cantons  directed  their  opposition, 
not  against  the  supreme  authority,  but  against 
the  feudal  lords  who  had  acquired  immediate 
suzerainty  over  them.  So  the  British  colonists, 
while  they  stoutly  maintained  their  loyalty  to 
the  king  and  the  English  constitution,  prepared 
with  great  determination  to  resist  the  governors 
who  were  sent  among  them.  In  the  resistance 
offered  by  the  people  to  the  governors  we  ob- 
serve the  beginnings  of  a  democratic  war  on  feu- 
dalism. "  The  governors  came  over  with  high 
ideas  of  their  own  importance,  and  with  not  a 
little  of  the  feudal  spirit,  which  regarded  the 
possessors  of  power  as  the  holders  of  so  much 
personal  property  that  they  might  turn  to  their 
own  private  uses;  while  the  assemblies  were  im- 
bued with  the  spirit  of  the  great  idea  that  gov- 
ernment is  an  agency  or  trust,  which  was  to  be 
exercised  for  the  common  good."  ^  In  spite  of 
the  professed  loyalty  of  the  cantons  and  the  col- 
onies, and  their  original  determination  to  form 
unions  without  changing  their  relations  with  the 
supreme  governments,  they  nevertheless,  in  both 
cases,  assumed  positions  and  established  institu- 

* Frothingham,  "The  Rise  of  the  Republic  of  the  United 
States,"  127. 


12  GOVERNMENT  OF   SWITZERLAND. 

tions  which  were  absolutely  irreconcilable  with 
the  lingering  feudalism  that  still  found  expo- 
nents in  the  emperor  and  the  king. ' 

But  the  general  circumstances  under  which 
liberty  was  developed  in  the  two  republics  were 
different.  In  Switzerland  it  grew  up  in  a  pop- 
ulation which,  on  the  same  soil,  had  been  sub- 
jected to  feudal  rule.  Among  the  British  colo- 
nists of  America,  it  grew  on  a  new  soil,  in  a  field 
free  from  the  embarrassing  traditions  of  earlier 
social  forms  ;  in  a  field,  moreover,  whose  popu- 
lation was  in  large  part  composed  of  those,  or 
the  descendants  of  those,  who  had  fled  from  the 
disagreeable  religious  and  political  restraints  of 
an  older  society.  In  the  one  case,  liberty  was 
developed  in  the  immediate  presence  of  rejected 
authority  ;  in  the  other  case,  its  growth  was  en- 
couraged by  the  leveling  influences  of  frontier 
life,  and  by  a  wide  separation  from  the  seat  of 
the  supreme  power.  The  two  subsequent 
phases  of  development  in  both  cases  were  the 
same.  Having  obtained  independence,  a  loose 
confederation  was  formed  in  each  case,  with  a 
single  assembly  as  the  sole  organ  of  confederate 
authority ;  and,  as  a  third  phase  of  political 
growth,  the  confederate  congress  was  supplanted 
by  a  federal  organization.  In  the  United 
States,  the  transition  was  made  in  1788;  in 
Switzerland,  in  1848. 

'  Frothingham,  161. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      1 3 

The  first  important  event  in  the  history  of  the 
Swiss  republics  was  the  union  of  Uri,  Schwyz, 
and  Unterwalden,  in  1291.  The  movement  by 
which  this  union  was  effected  was  not  an  iso- 
lated undertaking,  but  was  in  some  sense  char- 
acteristic of  the  age  to  which  it  belongs.  Other 
phases  of  it  are  seen  in  the  organization  of  city 
republics,  and  their  attempts  to  acquire  a  recog- 
nition of  their  liberties;  and  in  the  formation  of 
leagues  of  cities,  like  the  Hanseatic  League, 
or  the  League  of  the  Rhine.  At  the  time  of 
their  union,  the  lands  which  became  the  three 
primitive  cantons  of  Switzerland  had  released 
themselves  from  all  obligations  to  feudal  supe- 
riors, and  attained  a  position  with  respect  to  the 
empire  essentially  like  that  of  the  free  cities  of 
Central  Europe.  Uri  acquired  this  position  in 
the  early  part  of  the  thirteenth  century  ;  Schwyz 
and  Unterwalden,  a  little  later;  and  since  1240, 
the  practical  independence  of  all  three  has  rested 
on  an  unimpeachable  legal  foundation.  Though 
practically  independent,  they  remained  directly 
subordinated  to  the  empire,  and  neither  their 
individual  striving  nor  their  united  action  aimed 
tolibertate  them  from  this  position  of  subordina- 
tion. The  union  was  formed  rather  to  main- 
tain this  relation  and  to  check  the  encroach- 
ments of  the  House  of  Hapsburg. 

After  the  death  of  Frederick  II.,  in   1250,  the 


14  GOVERNMENT  OF    SWITZERLAND. 

imperial  power  rapidly  declined,  and  the  de- 
pendent princes  and  estates  of  the  empire 
sought  on  all  sides  to  extend  their  dominion. 
When  Rudolf  of  Hapsburg,  whose  hereditary 
lands  embraced  a  part  of  the  present  territory 
of  Switzerland,  was  made  emperor  in  1273,  it 
was  his  weakness  that  chiefly  recommended  him 
to  the  electors.  It  was  hoped  that  he  would 
not  be  able  to  check  the  tendency  to  particular- 
ism that  had  been  gaining  strength  during  the 
previous  quarter  of  a  century.  Rudolf  occu- 
pied the  throne  for  eighteen  years,  and  died  on 
the  15th  of  August,  1 29 1.  A  few  months  be- 
fore his  death  he  purchased  for  his  son,  Duke 
Albrecht,  certain  rights  of  feudal  jurisdiction 
over  the  city  of  Luzern  and  its  outlying  lands. 
The  knowledge  of  Albrecht's  zeal  in  enlarging 
the  Hapsburg  dominions  made  the  free  cities 
and  cantons  solicitous  for  the  preservation  of 
their  liberties.  Shortly  after  Rudolf's  death, 
therefore,  the  citizens  of  Zurich,  then  a  free  city, 
resolved  that  the  town  "should  not  fall  to  any 
lord,  except  with  the  common  consent  of  the 
community."  A  week  later,  •n  the  ist  of  Au- 
gust, Uri,  Schwyz,  and  Unterwalden  joined  in 
a  perpetual  union,  and  adopted  articles  of  con- 
federation.^ 

•  Bluntschli     "Geschichte    des     schweizerischen     Bundes- 
rechtes,"  I,  59,  60;  II,  i. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      1 5 

The  parties  to  this  alliance  sought  by  means 
of  it  to  be  "  better  able  to  defend  themselves 
and  their  property,  and  more  readily  to  pre- 
serve them  in  their  proper  condition;"  and  to 
the  attainment  of  this  end  they  promised  to  co- 
operate with  all  their  means  and  ability.  To 
oppose  all  encroachments  of  enemies,  they 
promised,  moreover,  to  render  aid,  at  their  own 
expense,  to  any  member  of  the  Confederation 
according  to  its  needs.  Their  oath  involved  a 
refusal  to  accept  a  judge  who  had  purchased  his 
office,  or  who  did  not  belong  to  and  reside  in 
the  canton.  In  case  of  strife  arising  within  the 
Confederation,  the  more  prudent  men  should 
step  forward  to  allay  the  discord  in  such  a  man- 
ner as  might  seem  to  them  most  expedient  ; 
and  if  one  party  would  not  accept  this  media- 
tion, the  others  acting  together  should  enforce 
submission  ;  and  it  should  be  the  duty  of  all  to 
uphold  those  charged  with  the  enforcement  of 
obedience.  If  a  person  should  take  the  life  of 
another,  he  should  be  executed,  "  if  not  able  to 
show  his  innocence  of  the  crime,"  ^  and  if  per- 
chance he  had  fled,  he  should  never  return.  It 
was  further  provided  that  anyone  who  might 
succor  and  defend  such  a  criminal  should  be  ban- 
ished from  the  lands  of  the  Confederation  until 

^"Nisi  suam  de  dicto  maleficio  valeat  ostendere  innocen- 
ciam."     Art.  6. 


l6  GOVERNMENT  OF  SWITZERLAND. 

he  should  be  "  deliberately  recalled  by  the  par- 
ties to  this  compact."  The  incendiary  should 
be  deprived  of  his  civil  and  political  rights,  and 
the  property  of  anyone  who  might  succor  or 
defend  him  should  be  confiscated  for  the  satis- 
faction of  the  injured  party.  If  anyone  should 
deprive  another  of  the  allies  of  his  property,  or 
injure  him  in  any  way  whatsoever,  the  property 
of  the  criminal  should  be  confiscated  and  kept 
for  the  satisfaction  of  the  person  injured,  in  ac- 
cordance with  justice. 

The  formation  of  this  union  was  the  first  step 
in  the  political  development  of  Switzerland,  and 
the  articles  of  union  became  the  historical  basis 
of  the  republic.  By  it  primitive  political  groups 
were  permanently  united,  illustrating  the  first 
phase  in  the  growth  of  a  nation.  By  establish- 
ing certain  relations  between  the  united  cantons 
and  external  powers,  and  by  determining  con- 
ditions of  internal  administration,  it  indicated 
the  double  field  of  sovereign  activity  which  the 
republic  was  later  to  enter. 

The  second  step  was  the  enlargement  of  the 
union  through  the  addition  of  five  other  confed- 
erates, joined  to  the  original  cantons  by  special 
treaties.  In  November,  1332,  Luzern  became 
the  fourth  member  of  the  Confederation.  This 
city  was  then  under  the  suzerainty  of  Austria. 
It  recognized  its  subordination,  yet  at  the  same 


ANTECEDENTS  OF  SWISS  FEDERALISM.      Y'j 

time,  in  forming  an  alliance  with  the  cantons,  it 
acted  in  opposition  to  its  legitimate  superior. 
The  alliance  was  the  first  step  towards  the  rejec- 
tion of  Austrian  supremacy.  In  May,  1351, 
Zurich  united  in  a  perpetual  union  with  Luzern 
and  the  three  cantons.  Its  wealth  and  impor- 
tant position  as  a  free  imperial  city  gave  it  great 
influence  among  the  allies,  yet  it  held  no  legal 
superiority.  The  next  year  Glarus  and  Zug 
were  added,  and  in  March,  1353,  by  the  alliance 
of  Bern,  the  union  reached  a  point  of  its  growth 
in  numbers  at  which  it  remained  for  one  hun- 
dred and  twenty-eight  years,  till  148 1.  The 
period  which  ended  here  was  the  heroic  age  of 
Switzerland.  At  Morgarten  (13 15),  Sempach 
(1386),  and  Nafles  (1387),  the  Swiss  people 
gave  unmistakable  evidence  of  a  determination 
in  favor  of  liberty. 

The  third  step  was  marked  by  the  addition  of 
five  other  members.  Bern  had  retained  in  the 
Confederation  her  own  policy;  and  hei*  efforts 
to  range  the  other  cities,  Zurich  and  Luzern,  on 
her  side,  were  so  far  successful  that  there  ap- 
peared a  city  party  and  a  country  party.  This 
divergence  of  policy  was,  however,  in  a  measure 
the  outgrowth  of  different  social  and  political 
conditions.  In  the  one  case  the  people  lived  in 
isolated  dwellings,  scattered  along  the  valleys 
and  over  the  sides  of  mountains  ;  in  the  other 
2 


/ 


GOVERNMENT  OF  SWITZERLAND. 

case  they  were  confined  to  the  narrow  limits  of 
crowded  cities.  The  constitutions  of  the  rural 
cantons  were  strongly  democratic  ;  those  of  the 
cities  were  aristocratic.  The  most  important 
feature  of  the  government  in  one  case  was  an 
assembly  of  all  the  freemen;  in  the  other  case,  a 
council  of  distinguished  citizens.  When  Frei- 
burg and  Solothurn  sought  admission,  the  two 
parties  found  opportunity  to  express  their  an- 
tagonistic views.  The  cities  favored  the  appli- 
cation, while  the  rural  cantons  opposed  it.  It 
was  clearly  seen  that  the  proposed  enlargement 
of  the  Confederation  involved  a  still  more  com- 
plete transfer  of  the  balance  of  power  to  the  cit- 
ies ;  and  this  fact,  which  was  for  the  rural  cantons 
a  ground  of  opposition,  was  for  the  cities  the 
basis  of  their  advocacy.  In  1477  the  three  cities 
formed  a  perpetual  alliance  with  Freiburg  and 
Solothurn,  and  this  act  only  added  intensity  to 
the  jealousy  and  indignation  of  the  rural  can- 
tons. A  breach  between  the  parties  appeared 
imminent,  but  was  averted  by  the  agreement 
effected  at  Stantz,  in  December,  148 1.  By 
this  agreement  the  members  of  the  Confed- 
eration engaged  to  use  no  violence  towards  one 
another,  nor  to  allow  violence  to  be  used  by 
their  dependents,  but  to  aid  one  another  in 
bringing  their  refractory  subjects  to  obedience. 
At  this  meeting  also  party  strife  was  allayed, 


ANTECEDENTS  OF  SWISS  FEDERALISM.      1 9 

and  Friburg  and  Stolohurn  were  admitted  to 
membership  in  the  Confederation,  Twenty 
years  later,  in  1501,  the  cities  of  Basel  and 
Schaffhausen  were  added,  and  in  15 13  the  can- 
ton of  Appenzell.  After  the  admission  of  Ap- 
penzell, no  further  increase  in  the  membership 
of  the  Confederacy  was  made  for  nearly  three 
hundred  years,  till  1798. 

In  these  early  steps  towards  the  formation  of 
a  national  government,  the  Confederation  had  to 
determine  two  points:  (i)  Its  ability  to  preserve 
its  independence  against  encroachments  from 
without;  (2)  its  ability  to  maintain  a  lasting  un- 
ion of  its  several  parts.  The  first  point  was 
practically  determined  by  "  the  eight  old  can- 
tons." When,  however,  the  number  of  confed- 
erates had  been  increased  to  thirteen,  and  the 
danger  of  being  overwhelmed  by  hostile  neigh- 
bors had  been  set  aside,  the  forces  of  internal 
discord  became  manifest.  To  the  social  and 
political  differences  which  appeared  in  the  con- 
trast between  the  city  and  rural  cantons,  there 
were  added,  as  a  consequence  of  the  Reforma- 
tion, the  antagonisms  of  different  religious 
creeds,  subjecting  the  Confederation  to  a  strain 
that  threatened  to  destroy  it.  This  was  the 
critical  period  in  the  development  of  the  Swiss 
Republic ;  for  the  preservation  of  liberty  was  de- 
pendent on  the  preservation  of  union. 


20  GOVERNMENT  OF   SWITZERLAND. 

Between  the  admission  of  Appenzell,  in  15 13, 
and  the  establishment  of  the  Helvetic  Republic, 
in  1798,  the  number  of  members  in  the  Confed- 
eration remained  unchanged.  It  does  not  fol- 
low from  this  fact,  however,  that  the  amount  of 
territory  under  Swiss  dominion  remained  un- 
changed. On  the  contrary,  it  was  considerably 
enlarged,  and  that  chiefly  in  two  ways:  (i) 
Through  acquisitions  by  individual  cantons  ;  (2) 
through  alliances,  in  which  the  Confederation, 
or  a  canton,  or  several  cantons  together,  re- 
tained a  superior  position,  while  the  other  par- 
ties to  the  compact  held  subordinate  positions. 
Before  the  end  of  the  sixteenth  century,  a  num- 
ber of  cities,  rural  communes,  and  small  princi- 
palities had  fallen  into  this  list. 

These  subordinate  allies  were  not  actual 
members  of  the  Confederation,  but  through 
their  connections  with  some  or  all  of  the  can- 
tons, they  participated  in  the  fate  of  the  whole. 
Although  the  early  alliances  out  of  which  the 
completed  Confederation  grew  were  formed 
with  no  design  of  opposing  the  authority  of 
the  empire,  yet  long  before  the  independence 
of  the  Confederation  was  formally  acknowl- 
edged by  the  European  nations,  through  the 
Treaty  of  Westphalia,  it  had  attained  to  practi- 
cal independence,  and  to  the  exercise  of  the 
powers  of  a  sovereign  state.     As  an   independ- 


ANTECEDENTS  OF  SWISS  FEDERALISM.      21 

ent  state,  Switzerland  has  held  two  positions 
with  respect  to  the  international  politics  of  Eu- 
rope :  that  of  an  ally,  and  that  of  a  neutral.  As 
an  ally,  the  Swiss  achieved  more  military  glory 
than  political  advantage.  "  The  first  time  they 
interfered  on  a  large  scale  in  foreign  affairs, 
they  were  disgracefully  misused,  and  inflicted 
upon  themselves  the  greatest  injuries.  Their 
military  victories  were  at  the  same  time  political 
defeats.  Without  any  grievance  of  their  own, 
led  away  entirely  by  foreign  suggestion  and 
foreign  money,  they  undertook  the  war  against 
Charles  the  Bold.  And  while  they  broke  the 
power  of  the  Burgundian  duke  without  appre- 
ciating how  completely  they  were  acting  in  the 
interest  of  the  French  king,  they  destroyed  an 
important  middle  power  not  only  between 
France  and  Switzerland,  but  also  between 
France  and  Austria.  Had  the  Duke  of  Bur- 
gundy retained  essentially  his  position,  Switzer- 
land as  a  consequence  would  have  won  in  him 
a  natural  ally  in  opposition  to  the  great  powers 
of  France  an^  Austria,  and  much  friction  be- 
tween these  two  powers  would  have  been  pre- 
vented. But  for  the  sake  of  temporary  advan- 
tages, the  Swiss  overlooked  the  lasting  interests 
of  their  independence  and  peace.  After  this 
they  fell  more  and  more  under  the  influence  of 
the  French  policy,  and  were  more  completely 


22  GOVERNMENT  OF    SWITZERLAND. 

subjected  than  before  to  the  fluctuations  pro- 
duced by  the  nearness  of  France  to  Austria."  ' 

The  role  which  they  played  in  the  Italian 
wars  was  scarcely  more  to  their  credit  or  ad- 
vantage, although  at  one  time  the  fate  of  the 
duchy  of  Milan  was  practically  in  their  hands, 
and  they  were  momentarily  moved  by  the  am- 
bition to  win  for  themselves  a  place  among  the 
great  powers  of  Europe.  They  were,  however, 
not  organized  for  conquest,  nor  were  they  the 
chief  representatives  of  any  one  of  the  great 
peoples  of  the  Continent.  They  became  con- 
scious of  these  facts,  and  recognized  that  their 
military  renown  had  been  gained  chiefly  in 
struggles  for  their  liberty  and  independence,  and 
that  it  was  the  maintenance  of  these  which  con- 
stituted the  proper  end  of  their  military  activ- 
ity. 

As  long  as  the  Confederation  was  surrounded 
by  unfriendly  neighbors,  its  unity  was  secured 
by  the*  force  of  external  pressure.  The  first 
serious  danger  of  dissolution  overtook  it  when 
it  had  made  peace  with  all  the  world,  and  found 
opportunity  to  develop  internal  antagonisms. 
The  early  contrasts  presented  by  town  and 
country  aroused  for  a  time  the  spirit  of  disunion, 
but  the  attitude  of  neighboring  powers  furnished 
a  superior  reason  for  united  action.     Yet  when 

^Bluntschli,  I,  265. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      23 

the  Reformation  hac^  thrown  among  the  people 
the  fire-brand  of  ecclesiastical  controversy,  an 
explosion  appeared  imminent.  Under  the  in- 
fluence of  an  antagonism  of  creeds,  the  old  or- 
der of  things  was  so  far  broken  up  that  there 
appeared  one  diet  for  the  Catholic  cantons  and 
another  for  the  Prostestant  cantons.  Gradually, 
however,  the  breach  was  healed,  and  a  single 
body  continued  to  act  for  the  whole  Confeder- 
ation. 

The  Diet  of  the  thirteen  cantons  was  the  sole 
organ  of  the  Confederation.  In  the  earlier 
times  it  had  no  definitely  fixed  form  nor  fixed 
times  and  place  of  meeting.  Besides  the  as- 
sembly of  delegates  from  all  the  cantons,  there 
were  assemblies  of  delegates  from  only  such 
cantons  as  were  concerned  in  the  business  to 
be  brought  forward,  and  after  the  Reforma- 
tion, meetings  of  the  Catholic  and  Protestant 
cantons  separately.  The  meetings  of  the  Diet 
were  held  "at  the  most  diverse  times  of  the 
year,  as  the  business  to  be  transacted  demanded, 
and  lasted  usually  only  one  or  a  few  days,  but 
were  easily  and  often  repeated,  so  that  in  a 
single  year  there  often  occurred  a  whole  series 
of  different  sessions.'"  Later,  the  place  and 
time  of  meeting  were  both  prescribed,  and  at  a 
single  session  the  business  of  the  whole  year  was 

*  Bluntschli,  I,  392. 


24  GOVERNMENT  OF    SWITZERLAND. 

considered.  At  first,  any  canton  might  sum- 
mon the  Diet,  but  later  it  was  provided  that  the 
regular  call  for  a  meeting  should  be  made 
through  the  Vorort,  Zurich.  Each  canton,  still, 
in  the  sixteenth  century,  often  sent  only  one 
delegate  ;  after  this,  however,  it  became  custom- 
ary to  send  two,  yet  there  was  no  legal  deter- 
mination of  the  number  it  might  send.  It  was, 
in  fact,  a  matter  of  slight  importance,  inasmuch 
as  the  voting  was  not  by  persons  but  by  can- 
tons, each  canton  having  one  vote,  without  re- 
gard to  the  extent  of  its  territory  or  the  amount 
of  its  population.  The  subordinate  estates, 
however,  that  were  represented  in  the  Diet,  the 
abbot  of  St.  Gallen,  the  city  of  St.  Gallen,  and 
the  city  of  Bienne,  were  not  permitted  to  send 
more  than  one  delegate.  The  powers  of  the 
Diet  were  not  those  of  a  representative  body, 
but  rather  those  of  an  assembly  of  ambassadors, 
in  which  each  member  acted  according  to  in- 
structions given  by  his  superior.  But  the  as- 
sembly was  not  limited  to  a  prescribed  circle  of 
activity;  it  was  competent  to  discuss  all  mat- 
ters of  interest  to  the  Confederation.  It 
was  the  medium  through  which  all  negotia- 
tions between  the  Confederation  and  other 
states  were  carried  on.  "  It  received  the  am- 
bassadors of  foreign  powers,  listened  to  their 
addresses,  and  made  reply ;  it  also  sent  ambas- 


ANTECEDENTS  OF  SWISS  FEDERALISM.      25 

sadors  now  and  then  to  foreign  countries.  It 
made  war  and  peace  in  the  name  of  the  Con- 
federation ;  and  in  the  case  of  war  between  neigh- 
boring powers,  it  made  the  necessary  provisions 
for  defending  its  territory  and  neutrality.  It 
negotiated  alliances  with  foreign  states,  which 
each  canton,  however,  remained  at  liberty  to  ac- 
cept or  reject."  ^  Yet  no  canton  was  at  liberty 
to  conclude  alliances  with  foreign  states  without 
the  consent  of  the  Diet.  But  the  fact  that  am- 
bassadors were  received  by  the  Diet  did  not  pre- 
vent them  from  being  accredited  to,  and  received 
by,  the  individual  cantons.  The  Confederation 
had  no  resident  ministers  at  foreign  courts,  but 
sent  ambassadors  as  the  occasion  seemed  to  de- 
mand. This  power  was  also  exercised  by  the 
several  cantons,  and  it  sometimes  happened  that 
a  number  of  cantons  had  ambassadors  near  the 
same  court  at  the  same  time;  and  in  the  case  of 
the  renewal  of  the  alliance  with  France,  each  of 
the  cantons  had  its  representative  near  the 
French  court. 

In  order  that  the  Confederation  might  be  in  a 
position  to  exert  upon  its  neighbors  either  a 
moral  or  a  physical  influence,  it  was  necessary 
that  internal  harmony  .should  prevail;  and  the 
task  of  securing  this  state  of  things  fell  upon  the 

1  Blumer,  "  Handbuch  des  schweizerischen  Bundesstaats* 
rechtes,"  i,  14. 


26  GOVERNMENT  OF    SWITZERLAND. 

Diet  as  the  only  organ  of  the  united  cantons. 
Not  having  the  powers  of  a  sovereign  over  sub- 
ordinate societies,  the  Diet  was  obliged  to  rely 
chiefly  on  mediation;  and  it  regarded  interfer- 
ence by  this  means  a  duty,  even  when  not  ap- 
pealed to  by  the  parties  in  conflict.  The  chief 
weakness  of  the  Confederation  with  respect  to 
internal  affairs  lay  in  the  fact  that  the  principle 
of  majority  rule  was  adopted  only  to  a  very  lim- 
ited extent.  Each  canton  voted  with  perfect 
freedom,  and  was  not  obliged  usually  to  follow 
the  decision  of  the  others.  In  the  course  of 
time  it  came  to  be  accepted  that  the  minority 
should  accede  to  the  will  of  the  majority,  in 
cases  where  the  articles  of  union  or  special  agree- 
ments of  all  concerned  gave  the  majority  the 
right  to  form  conclusions.  The  acceptance  of 
this  principle  was  a  consequence  of  a  growing 
sense  of  common  interests  and  a  common  des- 
tiny, coupled  with  the  conviction  that  no  one 
canton  should  be  allowed,  through  its  stubborn- 
ness, to  jeopardize  the  well-being  of  the  whole. 

The  early  history  of  Switzerland  shows  no 
more  unity  in  military  than  in  civil  affairs. 
"  Each  individual  canton  had  a  military  organi- 
zation of  its  own.  And  when  a  common  war 
was  undertaken  by  the  Confederation,  each  can- 
ton sent  its  troops  under  its  own  standard  and 
under  officers  appointed  by  itself"  ^     The  army 

^  Bluntschli,  I,  409. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      27 

thus  constituted  had  no  single  officer  in  supreme 
command.  The  plans  of  campaigns  and  of  bat- 
tles were  evolved  and  adopted  by  the  chief  offi- 
cers in  council.  Sometimes  the  soldiers  of  the 
cantons  were  attended  in  the  field  by  several 
members  of  the  cantonal  councils,  who  partici- 
pated in  the  discussion  of  affairs,  and  formed,  as 
it  were,  a  diet  in  the  field.  Sometimes,  also,  the 
members  of  the  councils,  the  officers,  and  the 
whole  army,  met  for  deliberation  in  a  great  con- 
federate assembly.  These  provisions  for  the 
control  of  the  army  were  necessarily  found  inef- 
ficient. The  exigencies  of  war  demanded  a  cen- 
tralization of  authority,  and  for  great  emergencies 
and  for  the  overcoming  of  peculiar  difficulties,  a 
single  officer  was  given  the  supreme  command, 
either  by  the  direct  action  of  the  Diet,  or  by  the 
action  of  the  chief  cantonal  officers,  or  by  the  ac- 
tion of  a  single  canton  authorized  by  the  Diet. 
In  such  cases  the  military  leadership  was  likely 
to  fall  to  the  canton  that  enjoyed  political  pre- 
eminence. 

The  sixteenth  century,  with  its  ecclesiastical 
antagonisms,  threatened  the  Confederation  with 
dissolution ;  but  during  the  next  century  a  strong 
reactionary  tendency  was  manifest,  and  European 
states  sought  to  realize  the  principles  of  abso- 
lutism in  their  organizations.  In  so  far  as  this 
movement  affected  Switzerland,  it  emphasized 


28  GOVERNMENT  OF    SWITZERLAND. 

the  need  of  centralization.  Its  effect  in  Ger- 
many was  to  make  the  States  of  the  empire 
imitate  the  absolutism  of  France.  It  thus  weak- 
ened their  support  of  the  central  power.  The 
Thirty  Years'  War  and  the  encroachments  of 
France  on  her  neighbors  made  the  Swiss  feel 
more  than  ever  the  need  of  a  common  agent  of 
defense.  An  importantstep  towards  the  creation 
of  such  an  agent  was  the  establishment  of  the 
Defensional,  first  brought  forward  in  1629,  but 
not  fully  carried  out  till  during  the  wars  of 
Louis  XIV.,  in  1668.  Under  the  provisions  of 
this  agreement,adopted  unanimously  by  the  Diet, 
each  canton  was  required  to  hold  itself  in  readi- 
ness to  furnish,  whenever  they  should  be  called 
for,  a  certain  number  of  men  and  a  certain 
amount  of  munitions.  The  total  number  of  men 
provided  for  was  forty  thousand  and  two  hun- 
dred, in  three  divisions  of  thirteen  thousand  four 
hundred  each.  Of  each  of  the  three  divisions 
Zurich  was  to  provide  fourteen  hundred  men, 
Bern  two  thousand,  Luzern  twelve  hundred,  the 
Abbot  of  St.  Gallen  one  thousand,  and  the  other 
cantons  different  numbers,  ranging  from  one 
hundred  to  eight  hundred.  The  second  and 
third  divisions  were  of  the  same  size,  and  to  be 
furnished  in  the  same  way. 

In  spite  of  this  attempt  to  form  an  effective 
union  for  defense,  the  indifference  and  mutual 


ANTECEDENTS  OF  SWISS  FEDERALISM.      29 

jealousy  of  the  several  cantons  rendered  the  Con- 
federation practically  defenseless  and  made  its 
disruption  by  a  foreign  power  an  easy  task. 
Throughout  the  seventeenth  and  eighteenth 
centuries,  the  aristocratic  elements  had  increased 
at  the  expense  of  the  democratic,  and  against 
this  dominant  aristocracy  the  French  democracy 
directed  its  propagandism.  It  prevailed  here, 
backed  by  the  French  army,  as  it  had  prevailed 
in  Holland  and  Italy.  Overwhelmed  by  the 
French  forces,  there  was  no  alternative  for  the 
cantons  but  to  submit  to  the  dictation  of  their 
conquerors;  and  thus,  in  violation  of  their  his- 
tory and  traditions,  there  was  established  the 
Helvetic  Republic,  a  centralized  state  modeled 
after  the  republican  government  then  existing  in 
France. 

This  was  the  fourth  step  towards  the  forma- 
tion of  a  national  administration  for  Switzerland. 
It  was  a  complete  revolution  in  both  the  form 
and  the  theory  of  the  government.  Whatever 
had  existed  hitherto  was  the  product  of  a  growth 
along  historical  lines,  in  which  ancient  traditional 
rights  had  been  preserved,  and  the  sovereignty 
of  the  several  cantons  had  remained  inviolate. 
Under  the  constitution  of  1798,  established 
through  the  interference  of  France,  the  histori- 
cal ground  was  abandoned,  and  a  basis  was 
sought  in  the  doctrine  of  natural   right.     The 


30  GOVERNMENT  OF   SWITZERLAND. 

cantons  were  deprived  of  their  independence,  and 
there  was  set  up  a  "  representative  democracy 
resting  on  the  abstract  ideas  of  liberty,  equality, 
and  popular  sovereignty."^ 

The  characteristic  features  of  the  new  consti- 
tution were  the  following:  "  The  sovereignty  re- 
sided simply  and  solely  in  the  totality  of  the 
citizens  of  the  Helvetic  Republic  as  an  indisso- 
luble state,  in  which  the  cantons  formed  merely 
administrative  districts.  The  people  exercised 
its  sovereignty,  however,  only  in  adopting  the 
constitution  and  in  appointing  electors,  in  the  pri- 
mary assemblies,  one  for  each  one  hundred 
active  citizens.  The  electors  of  each  canton 
assembled  for  the  election  of  the  deputies  of  the 
twoHouses  of  the  Legislature,the  members  of  the 
cantonal  courts,  and  of  the  bureaux  of  adminis- 
tration. The  legislative  power  of  the  republic 
was  exercised  by  the  Great  Council,  which  at 
first  consisted  of  eight  deputies  from  each  can- 
ton, but  afterwards  was  to  be  constituted  with 
reference  to  the  population,  and  by  the  Senate, 
composed  of  those  who  had  held  the  office  of 
director,  and  of  four  deputies  from  each  canton, 
who  were  required  to  be  thirty  years  old,  to  be 
married  or  widowers,  and  to  have  already  held 
some  one  or  more  of  the  higher  offices.     The 

^  Blumer,  I,  19;  Bluntschli,  II,  305-322,  for  the  constitution 
of  1798. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      3I 

Senate  was  empowered  to  accept  or  reject  bills 
passed  by  the  Great  Council.  The  two  councils 
elected  the  executive  Directory  of  five  members, 
the  manner  of  election  being,  that  for  each  place 
to  be  filled  one  of  the  councils,  determined  by 
lot,  formed  a  list  of  five  candidates,  from  which 
the  other  council  named  the  Director.  The  Di- 
rectory, supported  by  four  ministers  designated 
by  itself  for  the  different  departments  of  the  ad- 
ministration, was  the  proper  '  government '  of 
Switzerland.  Its  organs  were  the  stadtholders 
in  the  cantons,  the  under-stadtholders  in  the  dis- 
tricts, and  the  agents  in  the  communes.  The 
affairs  peculiar  to  the  cantons  found  certain, 
although  inadequate,  consideration  in  the  bu- 
reaux of  administration,  which  were  charged 
with  the  immediate  execution  of  the  laws  relat- 
ing to  finance  and  trade,  art,  labor,  agriculture, 
food,  the  maintenance  of  the  cities,  and  country 
roads.  The  administration  of  justice  was  carried 
on  through  district  and  cantonal  courts  and  one 
supreme  court.  The  last,  consisting  of  one 
member  from  each  canton,  tried  cases  involving 
charges  against  the  members  of  the  legislature" 
and  the  executive,  decided  in  the  second  instance 
important  criminal  cases,  and  was  empowered 
to  set  aside  the  decisions  of  the  lower  courts  in 
civil  cases  on  account  of  technical  informalities, 
want  of  competence,  or  violation  of  the  constitu- 


32  GOVERNMENT  OF  SWITZERLAND. 

tion.  The  division  into  cantons  maintained  for 
the  most  part  the  boundaries  of  the  former  con- 
federated cantons  and  the  subordinate  lands; 
yet  the  extensive  territory  of  the  republic  of 
Bern  was  divided  into  four  new  cantons:  Bern, 
Oberland,  Aargau,  and  Leman;  while  on  the 
other  hand  the  three  original  cantons  were  united 
with  Zug,  forming  the  new  canton  of  Wald- 
statten.  Glarus,  Gaster,  Uznach,  Rapperschwyl, 
Upper  Toggenberg,  Sax,  Gams,  Werdenberg, 
and  Sorgans  were  united  in  the  new  canton  of 
Linth;  and  Appenzell,  the  city  and  land  of  St. 
Gallen,  the  Rheinthal,  and  Lower  Toggenberg 
formed  the  new  canton  of  Santis.  The  avowed 
purpose  of  this  transformation  in  interior  and 
eastern  Switzerland  was  to  weaken  the  old  de- 
mocracies, which  appeared  as  the  seat  of  the  op- 
position to  the  new  order  of  things."  ^ 

The  adoption  of  this  constitution  was  a  long 
step  away  from  the  previously  existing  loose 
confederation,  towards  a  centralized  state.  It 
was  a  longer  step  than  the  Swiss  were  prepared 
to  take  alone.  The  form  of  government  im- 
posed upon  them  was  in  no  sense  an  expression 
of  the  degree  of  polijtical  progress  which  they 
had  made.  The  Helvetic  Directory  acted  un- 
der instructions  from  Paris,  and  its  pretensions 
to  independence  were  a  hollow  sham.     Switzer- 

'  Bumerl  I,   19,  20. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      33 

land  was  forced  into  an  alliance  with  the  French 
Republic,  and  was  obliged  to  see  her  lands  over- 
run and  her  treasure  carried  off  by  the  troops  of 
her  ally.  The  constitution  of  1798  was  created 
by  the  Directory  of  France,  and  had  to  be  up- 
held by  its  creator.  Its  existence  was,  there- 
fore, terminated  by  the  fall  of  the  Directory. 
It  lasted  long  enough,  however,  to  make  on  the 
minds  of  a  considerable  part  of  the  population 
an  impression  favorable  to  a  more  centralized 
government  than  had  hitherto  existed;  and 
when  it  ceased  to  be  in  force,  in  the  beginning 
of  1800,  it  left  the  Swiss  divided  into  two  par- 
ties, the  Centralists  and  the  Federalists.  The 
Federalists  adhered  to  ancient  traditions  and 
sought  to  revive  the  old  Confederation.  The 
Centralists,  on  the  other  hand,  had  come  into 
existence  under  the  Helvetic  Republic,  and  were 
the  advocates  of  centralization.  The  political 
events  of  Switzerland  during  the  following  three 
years  were  strongly  colored  by  the  conten- 
tions of  these  two  parties. 

The  crisis  in  France,  through  which  the 
Directory  was  supplanted  by  the  Consulate, 
showed  a  drift  of  power  towards  a  single  point 
in  the  organism.  But  the  strength  of  the  Fed- 
eralist party  made  it  impossible  for  Switzerland, 
of  her  own  will,  to  follow  the  lead  of  France  in 
this  direction ;  and  the  First  Consul,  however  ar- 
3 


34  GOVERNMENT  OF    SWITZERLAND. 

bitrary  his  dealings  with  the  Swiss,  manifested 
no  desire  to  divert  them  from  the  course  of  de- 
velopment marked  out  by  their  historical  tra- 
ditions. On  the  contrary,  he  pointed  out  the 
fact  that  what  they  needed  was  a  federal  consti- 
tution, "equality  of  rights  between  the  cantons, 
a  renunciation  of  all  family  privileges,  and  the 
independent  organization  of  each  canton."  To 
frame  for  themselves  a  constitution  was  then  the 
task  immediately  at  hand  ;  and  in  the  meantime 
while  the  task  remained  unfinished,  the  powers 
of  the  state  rested  in  a  provisional  government, 
consisting  of  a  legislative  council  of  fifty  mem- 
bers and  an  executive  council  of  seven  members. 
During  this  period  of  transition  several  constitu- 
tions were  formed,  but  inasmuch  as  they  were 
formed  under  the  dominance  of  those  influences 
which  had  determined  the  character  of  the  con- 
stitution of  1798,  they  for  the  most  part  empha- 
sized the  scheme  of  centralization  embodied  in 
that  instrument.  They  were  all,  however,  either 
still-born  or  had  only  a  brief  and  hopeless  exist- 
ence. But  these  unsuccessful  attempts  indicate 
that,  during  the  years  of  agitation  and  confusion 
produced  by  foreign  interference,  the  national 
idea  had  gained  in  strength  and  clearness.  It 
was  no  longer  possible  to  go  back  to  the  old  or- 
ganization. Even  the  Federalists,  who  insisted 
on  organizing  the  state  as  a  Union  of  more  or 


ANTECEDENTS  OF  SWISS  FEDERALISM.      35 

less  independent  cantons,  saw  clearly  the  need 
of  greater  centralization  than  had  existed  under 
the  old  Confederation. 

As  long  as  French  troops  occupied  the  coun 
try,  the  Centralists  kept  the  upper  hand.  But 
in  1802,  after  the  treaty  of  Amiens,  these  troops 
were  withdrawn.  This  left  both  parties  with 
out  foreign  support,  and  also  without  foreign 
restraint.  Although  the  Swiss  had  had  demo 
cratic  institutions  for  some  centuries,  yet,  in  ref 
erence  to  questions  of  general  concern,  the  mi- 
nority had  not  learned  to  submit  peaceably  to 
the  majority.  Party  conflicts  over  these  mat- 
ters, therefore,  meant  civil  war.  Through  for- 
eign intervention,  the  Swiss  had  been  placed  in 
a  position  from  which  they  seemed  to  be  unable 
to  extricate  themselves,  and  it  is  not  to  be  sup- 
posed that  in  withdrawing  his  army  Napoleon 
intended  to  leave  them  to  work  out  their  own 
salvation  alone.  He  had  become  indispensable 
to  them,  and  he  wished  the  fact  to  be  recog- 
nized. The  uproar  and  confusion  produced  by 
the  contending  parties  after  his  withdrawal,  gave 
him  the  desired  opportunity  to  appear  as  a 
mediator.  He  again  sent  an  army  into  Switz- 
erland, commanded  a  cessation  of  hostilities, 
and  called  delegates  of  both  parties  to  meet  him 
in  Paris,  for  the  purpose  of  discussing  the  fun- 
damental principles  of  a  new  constitution.     In 


36  GOVERNMENT   OF    SWITZERLAND. 

the  conference  which  followed  he  showed  a  re- 
markably clear  and  just  comprehension  of  the 
real  needs  of  the  people  for  whom  he  proposed 
to  legislate.  In  spite  of  his  identification  with 
the  movement  towards  unity  in  France,  he  de- 
cided with  great  definiteness  of  opinion  in  favor 
of  federation  for  Switzerland;  and  it  must  beset 
down  as  evidence  of  his  political  insight  that  he 
indicated,  as  desirable  for  the  Swiss,  a  position 
amoflg  the  nations  essentially  the  same  as  that 
which  they  hold  at  the  present  time. 

The  result  of  this  conference  was  the  Act  of 
Mediation,  a  fundamental  law  which  marks  the 
fifth  phase  of  the  governmental  history  of  Switz- 
erland. Its  promulgation  put  an  end  to  the 
hopeless  attempt  to  transform  the  loose  alliance 
into  a  centralized  state,  and  established  feder- 
alism as  the  principle  of  subsequent  political 
growth.  The  number  of  cantons  was  increased 
from  thirteen  to  nineteen.  .  Those  previously 
existing  retained  their  ancient  limits,  except 
that  Aargau  and  Vaud  were  composed  in  part 
of  territory  taken  from  Bern.  The  constitu- 
tions of  the  democratic  cantons  were  restored, 
modified  only  with  respect  to  the  age  required 
by  voters,  and  with  respect  to  the  initiative  in 
legislation.  The  six  new  cantons  were:  (i)  St. 
Gallen,  consisting  of  the  city  of  St.  Gallen, 
the    territory    of     the    former    abbey    of    St. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      37 

Gallen,  and  the  districts  of  Rheinthal,  Sax, 
Gams,  Werdenberg,  Sargans,  Gaster,  Uznach, 
and  Rapperschwyl ;  (2)  Granbiinden,  compris- 
ing most  of  the  territory  of  the  three  Rhae- 
itan  unions;  (3)  Aargaii,  made  up  in  part  of 
territory  which  formerly  belonged  to  Bern, 
and  in  part  of  territory  acquired  from  Aus- 
tria;  (4)  Thurgau;  (5)  Ticino,  embracing  the 
Italian  possessions;  (6)  Vaud,  comprising  lands 
formerly  belonging  to  Bern  and  Freiburg.  Of 
these  Granbiinden  retained  its  ancient  con- 
stitution, modified  only  in  certain  particulars  to 
adapt  it  to  its  new  circumstances.  The  other 
new  cantons,  Aargau,  St.  Gallen,  Ticino,  Thur- 
gau, and  Vaud,  received  constitutions  providing 
for  a  system  of  representation,  but  a  system  in 
which  the  method  of  election  was  even  more 
complicated  than  in  the  city  cantons.  As  to 
the  manner  of  election,  the  members  of  the 
great  council  were  divided  into  three  classes. 
The  members  of  the  first  third  were  elected  by 
a  direct  election  from  certain  districts,  the  only 
qualification  being  that  the  candidates  should 
be  thirty  years  of  age.  "  For  the  other  two- 
thirds,  lists  of  the  candidates  were  formed  from 
other  districts,  and,  indeed,  according  to  two  dif- 
ferent principles,  that  of  wealth  and  that  of  age. 
For  the  second  third  aconsiderably  higher  prop- 
erty qualification    was  demanded    than  in  the 


38  GOVERNMENT  OF    SWITZERLAND. 

Other  cantons;  on  the  other  hand,  for  this  class 
the  age  of  twenty-five  was  adequate.  The 
members  of  the  last  third  were  required  to  be  at 
least  fifty  years  of  age,  and  at  the  same  time  to 
possess  a  certain  amount  of  property.  From 
the  list  of  candidates  thus  formed  from  rich  and 
old  men,  the  actual  members  of  the  great  coun- 
cil were  drawn  by  lot." '  Inasmuch  as  these 
cantons  had  not  hitherto  enjoyed  equal  rights 
of  membership  in  the  Confederation  with  those 
that  had  been  admitted  before  the  Revolution, 
Napoleon  was  able  to  deal  with  them  freely 
without  interfering  with  any  rights  that  had 
been  sanctioned  by  time. 

The  period  of  centralization  under  the  con- 
stitution of  1798,  however  brief  and  stormy,  un- 
doubtedly removed  to  a  certain  extent  the  an- 
cient jealousy  of  the  cantons  of  one  another, 
and  made  them  less  reluctant  than  formerly  to 
accord  to  a  central  power  the  control  of  common 
affairs.  The  interference  of  Napoleon  thus  in- 
itiated on  the  part  of  the  cantons  the  habit  of 
looking  to  a  superior  to  whom  they  all  held  a 
common  relation ;  and  in  so  far  as  this  had  any 
bearing  on  their  political  development,  it  brought 
them  into  a  more  favorable  position  for  accept- 
ing the  plan  of  a  federal  organization.  The  can- 
tons "  mutually  guaranteed  to  one  another  their 

^Bluntschli,  I,  469;  Blumer,  I,  36. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      39 

constitutions,  their  territories,  and  their  freedom 
and  independence,  not  only  against  foreign 
powers  but  also  against  the  encroachments  of 
other  cantons  and  individual  factions."  Under 
the  Act  of  Mediation,  moreover,  there  were  es- 
tablished certain  fundamental  provisions:  (i) 
There  should  be  no  more  lands  subordinated  to 
the  cantons,  those  previously  existing  having 
been  made  cantons  in  the  Confederation;  (2)  all 
privileges  of  place  or  of  birth,  whether  of  single 
persons  or  of  families,  should  be  set  aside;  (3) 
any  Swiss  should  be  allowed  to  settle  freely  in 
any  canton;  (4)  no  internal  duties  should  be 
collected  and  no  impediment  should  be  put  in 
the  way  of  the  free  circulation  of  food,  live 
stock,  and  merchandise;  (5)  the  Diet  should 
establish  a  proper  standard  of  coinage  ;  (6)  no 
canton  should  afford  refuge  and  protection  to 
criminals  fleeing  from  other  cantons,  and  no  ex- 
ception under  this  provision  should  be  made  in 
favor  of  political  offenders  ;  (7)  cantons  should 
not  form  alliances  among  themselves  nor  with 
foreign  powers  ;  (8)  cantonal  authorities  should 
be  held  responsible  for  their  violations  of  laws 
established  by  the  Confederation,  and  the  com- 
plaints in  such  cases  should  be  brought  before  a 
tribunal  composed  of  the  presidents  of  the  crim- 
inal courts  of  the  cantons  not  under  accusation. 
These  specifications  indicate  that  the  cantons 


40  GOVERNMENT   OF   SWITZERLAND. 

had  lost  somewhat  of  that  complete  independ- 
ence which  they  had  enjoyed  before  the  Revo- 
lution ;  and  this  loss  by  the  parts  implied  a  gain 
by  some  organ  or  agent  of  the  whole.  The 
central  organization  which  came  into  existence 
through  this  revolution  still  bore  marks  of  can- 
tonal jealousy,  as  seen  in  the  fact  that  the  seat 
of  the  central  authority  was  changed  from  year 
to  year,  being  temporarily  established  in  suc- 
cession at  Freiburg,  Bern,  Solothurn,  Basel, 
Zurich,  and  Luzern,  each  of  the  cantons  here 
named  taking  in  turn  the  position  of  Directorial 
Canton.  The  chief  magistrate  of  the  Directo- 
rial Canton  became,  for  the  time  being,  the  head 
of  the  Confederation,  with  the  title  of  Landam- 
man  of  Switzerland.  He  retained  his  position 
in  the  canton,  however,  and  at  the  same  time 
stood  as  the  representative  of  the  national  or- 
ganization. He  kept  the  seal  of  the  republic, 
received  foreign  ambassadors,  conducted  diplo- 
matic negotiations,  laid  before  the  Diet  the  nec- 
essary communications  on  the  affairs  of  the  Un- 
ion, and  with  the  consent  of  the  government  of 
the  Directorial  Canton  disposed  the  troops  in 
the  interests  of  internal  order.  Without  his  con- 
sent no  canton  could  raise  more  than  five  hun- 
dred soldiers.  In  case  of  conflict  between  can- 
tons, he  could  provide  for  a  settlement  of  the 
matter  by  appointing  an  arbiter,  or  by  referring 


ANTECEDENTS  OF  SWISS  FEDERALISM.     4 1 

it  to  the  next  session  of  the  Diet.  He  warned 
the  cantons  of  threatening  danger.  He  super- 
vised certain  departments  of  public  works,  as 
streets,  roads,  and  improvement  of  river  beds. 
As  the  head  of  a  state  which  still  had  many  of 
the  features  of  a  loose  confederacy,  many  of  the 
functions  of  the  Landamman  were  those  of  a 
mediator. 

In  spite  of  the  loss  of  certain  functions,  the 
Diet  under  the  Act  of  Mediation  retained  many 
of  the  characteristic  features  of  the  Diet  of  the 
thirteen  cantons.  Like  that  body,  it  was  an  as- 
sembly of  ambassadors,  not  of  representatives. 
As  in  that  body,  moreover,  the  members  of  this 
acted  on  instructions  from  the  cantons  which 
had  sent  them.  Instead  of  each  canton  having 
one  vote,  however,  as  formerly,  those  of  over  one 
hundred  thousand  inhabitants,  as  Bern,  Zurich, 
Vaud,  St.  Gallen,  Aargau,  and  Graubiinden, 
now  had  two.  Yet  in  spite  of  this  provision, 
Bluntschli  says  that  "external  equality  of  all 
the  cantons  remained  the  fundamental  princi- 
ple." The  Diet  was  empowered  to  declare  war, 
make  peace,  and  conclude  alliances,  but  decis- 
ions in  these  matters  to  be  valid  required  the 
assent  of  three-fourths  of  the  members.  The 
Diet  had,  moreover,  the  authority  to  make  com- 
mercial treaties,  and  military  capitulations.  It 
exercised  control  over  the  cantonal  contingents  of 


42  GOVERNMENT   OF    SWITZERLAND. 

the  troops,  appointed  thegeneral  of  the  army,  and 
took  such  measures  as  were  necessary  to  the  se- 
curity and  peace  of  the  country.  It  decided  in 
cases  of  conflict  between  cantons,  when  the  me- 
diator could  not  solve  the  difficulty,  but  in  these 
cases  the  members  pronounced  judgment  freely 
without  instructions. 

There  were  also  involved  in  the  central  govern- 
ment a  chancellor  and  a  secretary,  elected  by  the 
Diet  for  a  period  of  two  years;  but  inasmuch  as 
they  were  eligiWe  for  re-election,  they  were  us- 
ually continued  in  office  for  a  number  of  succes- 
sive terms.  They  were  paid  by  the  Directorial 
Canton,  as  was  also  the  Landamman  of  Switz- 
erland. 

During  the  period  in  which  this  constitution 
continued  in  force,  Switzerland  enjoyed  unusual 
peace  and  prosperity.  It  entered  into  a  close 
alliance  with  France,  through  which  certain  com- 
mercial and  military  advantages  were  to  accrue 
to  the  two  nations.  By  a  later  military  capitu-' 
lation,  France  was  permitted  to  enroll  sixteen 
thousand  Swiss  in  her  army,  but  by  a  treaty 
formed  in  1812  the  number  was  limited  to  twelve 
thousand.  Although  Napoleon  acknowledged 
the  complete  independence  of  Switzerland,  yet 
France  under  him  exercised  over  it  the  powers 
of  a  protectorate.  Herein  lay  an  unfortunate 
circumstance   for  the  republic.     The  new  con- 


ANTECEDENTS  OF  SWISS  FEDERALISM.      43 

stitution  satisfied  fairly  well  the  political  wants 
of  the  Swiss  people,  but  it  had  come  to  be  re- 
garded not  as  an  expression  of  an  independent 
European  power,  but  as  a  contrivance  of  the 
First  Consul  imposed  upon  the  nation.  In  the 
public  mind  of  Europe  it  became  identified  with 
the  interests  of  the  French  Government,  and  by 
this  means  it  became  exposed  to  the  suspicion 
and  hatred  of  the  Allies  to  such  an  extent  that 
the  fall  of  Napoleon  necessarily  carried  with  it 
the  overthrow  of  this  piece  of  his  handiwork. 

Soon  after  the  defeat  of  Napoleon  at  Leipsic, 
in  1 8 1 3,  the  Allies  invaded  the  territory  of  Switz- 
erland, and  in  December  the  Swiss  Diet  met  at 
Zurich  and  formally  set  aside  the  Act  of  Media- 
tion. At  the  same  time  it  declared  in  favor  of 
retaining  the  new  cantons  in  the  Confederation; 
in  favor  of  providing  a  constitution  which  should 
embrace  all  the  cantons  in  a  common  union;  and 
in  opposition  to  holding  any  cities  or  lands  in  a 
subject  relation.  The  reactionary  party  rejected 
these  propositions,  and  under  the  leadership  of 
Bern  sought  a  revival  of  pre-revolutionary  con- 
ditions, and  demanded  that  a  diet  of  the  thirteen 
cantons  should  be  convoked  as  the  only  legiti- 
mate power  in  the  'Confederation.  Zurich  and 
her  followers  held  to  the  Confederation  in  its 
largest  and  latest  extent,  while  the  reactionary 
party  withdrew  and  called  a  diet  of  the  "eight 


44  GOVERNMENT  OF    SWITZERLAND. 

old  cantons."  "  This  outward  separation  was, 
however,  soon  abolished  by  the  pointed  declara- 
tion of  the  foreign  ambassadors,  that  the  Allies 
had  determined  irrevocably  to  preserve  the  in- 
tegrity and  independence  of  all  the  nineteen  can- 
tons, and  would  recognize  no  other  diet  than  that 
assembled  at  Zurich." '  On  the  6th  of  April, 
1 8 14,  the  Diet  at  Zurich  embraced  dele;^ates 
from  all  of  the  nineteen  cantons.  The  actual 
antagonisms,  however,  were  not  allayed,  yet  the 
opposing  parties  were  placed  in  such  relations 
to  one  another  that  it  was  possible  for  them  to 
work  towards  union.  The  questions  at  issue  had 
reference  chiefly  to  the  position  that  should  be 
accorded  to  the  new  cantons,  and  to  the  amount 
of  power  that  should  be  given  to  the  central  or- 
ganization. The  democratic  cantons  wished  as 
complete  local  sovereignty  as  possible,  and  their 
opposition  made  it  necessary  to  relinquish  much 
that  had  been  won  for  centralization  since  1798. 
The  disappearance  of  Napoleon  from  the  po- 
litical field  left  Switzerland  in  somewhat  intimate 
relations  with  the  victorious  Allies.  They  were 
disposed,  however,  to  leave  the  Confederation 
free  to  work  out  the  details  of  its  internal  organ- 
ization, only  requiring  certain  general  conditions 
to  be  fulfilled.  In  the  first  treaty  of  Paris,  in 
1814,  it  was  stated  that  "Switzerland  as  an  in- 

^  Blumer,  I,  46. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      45 

dependent  state  will  continue  to  govern  itself." 
In  order  to  remove  the  conflicts  between  the  can- 
tons regarding  their  territorial  limits,  the  Con- 
gress of  Vienna  invited  the  Swiss  to  send 
ambassadors  to  Vienna,  to  treat  with  the  repre- 
sentatives of  the  allied  powers  there  assembled. 
The  Congress  then  laid  before  the  Swiss  ambas- 
sadors certain  propositions,  on  the  acceptance  of 
which  the  Allies  promised  to  extend  to  Switzer- 
land a  formal  and  legal  recognition  of  her  per- 
petual neutrality.  These  propositions  were:  (i) 
That  the  nineteen  cantons,  as  they  stood  on  the 
13th  of  December,  18 13,  should  continue  as  the 
basis  of  the  Confederation;  (2)  that  Wallis,  the 
territory  of  Geneva,  and  the  principality  of  Neuf- 
chdtel,  should  be  embodied  in  Switzerland  as 
three  new  cantons;  (3)  that  the  bishopric  of 
Basel  should  be  added  to  the  cantons  of  Bern 
and  Basel,  and  the  city  of  Bienne  to  the  canton 
of  Bern ;  (4)  that  the  territorial  claims  of  Schwyz, 
Unterwalden,  Uri,  Glarus,  Zug,  and  Appenzell 
against  Aargau,  Vaud,  Ticino,  and  St.  Gallen 
should  be  met  by  the  payment  by  the  latter  can- 
tons of  five  hundred  thousand  francs;  (5)  that  a 
yearly  stipend  should  be  fixed  for  the  Abbot  of 
St.  Gallen.  These  propositions  were  accepted, 
and  Switzerland  received  from  Austria,  Spain, 
France,  Great  Britain,  Portugal,  Prussia,  Russia, 
and  Sweden  the  desired  documentary  guarantee 


46  GOVERNMENT  OF    SWITZERLAND. 

of  her  perpetual  neutrality.  As  in  the  Treaty  of 
Westphalia,  after  the  Thirty  Years'  War,  the 
powers  of  Europe  recognized  Switzerland's  in- 
dependence of  the  empire  long  after  it  had  been 
established  as  a  fact,  so  here  at  the  close  of  the 
Napoleonic  wars  the  powers  represented  in  the 
Congress  of  Vienna  acknowledged  the  neutrality 
of  Switzerland,  which,  according  to  the  Swiss 
view,  was  a  recognition  of  what  had  long  existed 
in  fact,  and  of  a  principle  that  had  long  been 
fundamental  in  Swiss  politics. 

After  much  wrangling  and  hesitating,  a  new 
constitution  for  the  Confederation  was  com- 
pleted, and  finally  accepted  by  the  twenty-two 
cantons,  August  7,  1815.  As  compared  with  the 
Act  of  Mediation,  it  laid  little  stress  on  the  cen- 
tral authority.  Under  the  preceding  organiza- 
tion the  individual  cantons  recognized  their 
obligations  to  conform  themselves  to  the  princi- 
ples of  the  federal  law,  and  it  was  definitely 
stated  in  the  Act  of  Mediation  that  the  cantons 
should  exercise  all  those  powers  which  had  not 
been  expressly  delegated  to  the  federal  author- 
ity. But  in  the  constitution  of  181 5,  limitations 
on  cantonal  sovereignty  were  made  less  conspic- 
uous. The  cantons  are  described  as  united  for 
the  "  maintenance  of  their  liberty,  independence, 
and  security  against  the  attacks  of  foreign  pow- 
ers and  the  preservation  of  internal  peace  and 


ANTECEDENTS  OF  SWISS  FEDERALISM.      47 

order,"  They  mutually  guaranteed  their  consti- 
tutions and  their  territories.  They  provided  for 
a  common  military  force  of  two  men  from  each 
one  hundred  of  the  population.  They  established 
the  principle  of  arbitration  for  settling  intercan- 
tonal  disputes,  prohibited  the  existence  of  sub- 
ject lands  as  they  had  previously  existed,  and 
determined  that  the  several  cantons  should  form 
no  alliances  detrimental  to  the  Union  or  to  any 
canton.  But  alliances  between  cantons  were  not 
definitely  prohibited,  as  they  had  been  by  the 
Act  of  Mediation,  nor  were  the  several  cantons 
prohibited  from  making  certain  military  capitu- 
lations and  treaties  on  commercial  affairs  and  on 
police  affairs  with  foreign  powers,  but  it  was  re- 
quired that  such  treaties  having  been  made  they 
should  be  reported  to  the  Diet.  "  The  Act  of 
Mediation  did  not  by  any  means  organize  Switz- 
erland as  a  Bundesstaat,  but  there  was  in  the 
Landamman  a  standing  central  organ  through 
which  a  series  of  measures  for  the  protection  of 
the  common  interests  could  be  carried  out.  The 
essential  character  of  the  new  articles  of  union 
lay  in  this,  that  they  made  the  Confederation 
once  more  purely  a  Staatenbund,  placed  the 
sovereignty  in  the  cantons,  and  made  no  men- 
tion whatever  of  the  central  power,  or  at  least 
crowded  it  into  the  background."  ' 

1  Von  Orelli,   "  Das  Staatsrecht  der  schweizerischen  Eidge- 
nossenschaft, "  19. 


48  GOVERNMENT   OF    SWITZERLAND. 

Under  this  constitution,  "  the  enjoyment  of  po- 
h'tical  rights  was  never  to  become  the  exclusive 
privilege  of  a  class  of  the  citizens  of  a  canton." 
Moreover,  the  inequality  of  cantonal  repre- 
sentation in  the  Diet,  which  had  existed  un- 
der the  Act  of  Mediation,  was  set  aside,  and  the 
ancient  equality  restored,  in  spite  of  the  vigor- 
ous opposition  of  the  larger  cantons.  Each 
canton  had  one  vote;  still,  the  superior  moral 
weight  of  the  larger  cantons  made  itself  felt  on 
the  course  of  events.  The  ambassadors  of  the 
cantons  in  the  Diet  voted,  as  previously,  ac- 
cording to  instructions;  but,»in  contrast  with  the 
previous  condition  of  things,  the  principle  of 
majority  rule  was  gradually  gaining  acceptance. 
In  certain  cases,  however,  such  as  decisions  rel- 
ative to  war  and  peace,  and  alliances  with  for- 
eign states,  the  specified  majority  of  three- 
fourths  required  under  the  Act  of  Mediation  was 
here  continued.  The  powers  delegated  to  the 
Diet  extended  to  the  formation  of  commercial 
treaties  with  foreign  states,  the  appointment  of 
ambassadors,  the  determination  of  the  organiza- 
tion of  the  troops,  the  control  of  the  army,  the 
appointment  of  the  generals,  the  officers  of  the 
general  staff,  and  the  colonels  of  the  confeder- 
ate army,  the  supervision  of  the  discipline  and 
equipment  of  the  troops,  and  to  all  measures  for 
the  external  and  internal  security  of  the  Confed- 
eration, 


ANTECEDENTS  OF  SWISS  FEDERALISM.      49 

The  office  of  Landamman  of  Switzerland  fell 
with  the  Act  of  Mediation.  It  became  neces- 
sary, therefore,  to  provide  an  organ  for  the  ad- 
ministration of  general  affairs  between  the  ses- 
sions of  the  Diet.  It  was  proposed  to  make 
Zurich  the  sole  Vorori,  and  her  burgermeister 
the  president  of  the  Diet  and  of  the  Confedera- 
tion; and  to  intrust  him  with  the  daily  corre- 
spondence and  the  current  business  of  the  gen- 
eral administration.  This  proposition,  however, 
together  with  all  the  provisions  of  detail  de- 
pending upon  it,  failed  of  acceptance.  Bern 
opposed  with  special  vigor  the  plan  to  make 
Zurich  the  sole  Vorort.  It  was  finally  deter- 
mined to  make  three  cities,  Zurich,  Bern,  and 
Luzern,  in  turn  the  seat  of  the  general  govern- 
mftnt,  each  exercising  for  a  period  of  two  years 
the  powers  of  the  Vorort  before  1798.  The 
burgermeister  of  the  Vorort  stood  at  the  head  of 
the  confederate  administration,  but  under  cer- 
tain circumstances  the  Diet  might  commission  a 
body  of  six  representatives,  one  from  each  of 
six  groups  of  cantons,  to  take  in  charge  the  af- 
fairs of  the  Confederation.  These  representa- 
tives received  instructions  from  the  Diet,  which 
determined  the  period  of  their  activity.  In  any 
case  their  power  ceased  at  the  reassembling  of 
the  Diet.  The  agreement  of  two-thirds  of  the 
members  was  necessary  to  authoritative  action. 
4 


50  GOVERNMENT   OF  SWITZERLAND. 

They  were  paid  from  the   treasury  of  the  Con- 
federation.    Besides   these  arrangements  for  a 
central  administration,  it  was  also  provided  that 
the  general  secretaryship,  as  it  had  existed  un- 
der the  Act  of  Mediation,  should  be  continued. 
The  constitution  of  1815  was  at  best  only  a 
compromise  between  interests  more  or  less  an- 
tagonistic ;  and  the  fact  that  the  Swiss  people 
lived  in  peace  and  quiet  under  it  for  fifteen  years 
is  not  necessarily  to  be  taken  as  evidence  of  its 
adaptation  to  their  political  wants.     The  politi- 
cal peace  following  the  Revolution   was   rather 
the  result  of  a  reaction  from  specially  troubled 
times,  under  the  revived  force  of  cantonal  tradi- 
tions.    During  this  period  political  activity  was 
almost  exclusively  confined  to  the  affairs  of  the 
cantons,  in  several   of  which  new   constitutions 
were  framed  and  adopted.     These  new  consti- 
tutions involved  important  fundamental  princi- 
ples.    They    recognized    popular    sovereignty, 
limiting   its  exercise  to  making   elections   and 
adopting  or  rejecting  proposed   amendments  of 
the  constitution.     They  transferred  to  the  great 
council  the  power  of  making  laws,  of  levying 
taxes,  of  instructing  delegates  to  the  Diet,  and  of 
supervising  the  general  administration  and  the 
administration    of  justice.     They  removed  the 
previously  existing  legal  inequality  between  the 
cities  and  the  rural  districts,  yet  in  some  cases 


ANTECEDENTS  OF  SWISS  FEDERALISM.      5 1 

favored  the  capital  towns  with  respect  to  rep- 
resentation. They  established  in  most  cases 
the  direct  popular  election  of  members  of  the 
great  council;  provided  for  short  terms  of  office; 
separated  the  judicial  from  the  executive  power, 
ordered  freedom  of  the  press  and  the  right  of 
petition ;  and  in  many  of  the  cantons  pledged  the 
authorities  to  improve  the  public  instruction. 

Down  to  1830,  except  during  some  portion  of 
the  Revolutionary  period,  the  several  cantons 
had  been  regarded  as  independent  political  so- 
cieties. The  articles  of  union  were  of  their  own 
creation,  and  became  binding  on  any  canton 
only  by  its  voluntary  action.  The  doctrine  of 
State  rights  was  accepted  without  question. 
On  the  27th  of  December,  1830,  the  Diet  de- 
clared "  that  every  canton  in  the  Confederation, 
by  virtue  of  its  sovereignty,  was  free  to  under- 
take such  changes  in  the  cantonal  constitution 
as  might  appear  to  it  desirable,  in  so  far  as 
these  changes  were  not  in  opposition  to  the  ar- 
ticles of  union,  and  that  the  Diet  would  not  in- 
terfere in  any  manner  in  such  constitutional 
reforms  as  had  already  been  made  or  even  pro- 
posed." The  adoption  by  the  Diet  of  a  policy 
of  non-interference,  left  the  cantons  without  any 
sufficient  guarantee  for  their  constitutions.  The 
desire  for  such  a  guarantee,  however,  coupled 
with  the  inefficiency  of  the  Diet,  led  to  the  es- 


52  GOVERNMENT   OF    SWITZERLAND. 

tablishment  of  new  alliances  for  this  purpose  in 
different  groups  of  cantons.  In  the  spring  of 
1832,  the  seven  cantons  of  Luzern,  Zurich,  Bern, 
Solothurn,  St.  Gallen,  Aargau,  and  Thurgau, 
agreed  mutually  to  guarantee  their  constitu- 
tions, and  pledged  themselves,  in  case  strife 
should  arise  among  them,  to  exercise  the  office 
of  mediators  and  to  secure  to  one  another  pro- 
tection by  force  of  arms.  This  was  the  first 
Sonderbund  within  the  Confederation,  and  a 
prelude  to  the  later  unions  and  the  so-called 
War  of  the  Sonderbund.  Besides  aiming  to 
furnish  mutual  security,  it  was  also  an  attempt 
on  the  part  of  the  then  dominant  radical-liberal 
party  to  form  a  more  compact  and  effective  or- 
ganization in  these  cantons.  This  action  of  the 
seven  liberal  cantons  was  followed  not  long  af- 
terwards by  the  formation  of  the  League  of 
Sarnen,  embracing  Uri,  Schwyz,  Unterwalden, 
Wallis,  and  the  city  of  Basely  in  which  the  con- 
servative party  was  dominant.  The  members 
of  this  union  withdrew  from  the  Diet,  but  the  re- 
maining cantons,  acting  through  the  existing 
general  organization,  raised  an  army  of  twenty 
thousand  men,  compelled  them  to  dissolve  their 
separate  alliance,  re-enter  the  Diet,  and  recog- 
nize the  division  of  Basel  into  two  half-cantons. 
The  formation  of  these  separate  unions  empha- 
sized the  existing  party  differences,   and   made 


ANTECEDENTS  OF  SWISS  FEDERALISM.      53 

apparent  the  need  of  a  more  efficient  central  au- 
thority. 

The  project  to  revise  the  articles  of  181 5  had 
already  been  several  years  under  discussion, 
when  the  League  of  Sarnen  was  overthrown  in 
1833,  and  the  results  of  these  discussions  showed 
a  marked  bias  in  favor  of  increasing  the  power 
of  the  central  organization,  and  of  establishing 
a  genuine  federal  government.  The  draft  of  a 
federal  constitution  which  was  submitted  to  the 
popular  vote  in  the  summer  of  1833  had  been 
formed  under  the  influence  of  the  liberal  party, 
and  consequently  met  with  an  opposition  from 
the  side  of  the  conservative  or  reactionary  can- 
tons, which  made  its  adoption  impossible. 
Later,  party  differences  were  increased  by  involv- 
ing religious  differences,  and  in  1846  the  Con- 
federation went  asunder,  the  Catholic  cantons 
becoming  united  in  a  separate  union,  which  was 
virtually  a  revival  of  the  League  of  Sarnen. 
An  immediate  object  of  this  union  was  to  de- 
fend the  cause  of  the  Jesuits,  whom  the  Liberals 
wished  expelled  from  the  Confederation,  as  the 
cause  of  the  recent  internal  troubles.  Both  par- 
ties soon  went  beyond  the  point  where  com- 
promise was  possible,  and  Switzerland  became 
divided  into  two  hostile  camps.  The  Catholic 
cantons  in  the  union,  disregarding  the  articles  of 
confederation  of  1815,  had  "engaged  to  defend 


54  GOVERNMENT   OF    SWITZERLAND. 

each  other  by  an  armed  force,  and  appointed  a 
council  of  war  to  concert  all  necessary  measures 
for  joint  action."  But  their  defeat  was  a  fore- 
gone conclusion.  Their  army  comprised  about 
50,000  men,  while  that  of  the  Confederation  was 
twice  as  large.  The  Confederation,  moreover, 
had  a  superior  moral  support  in  that  it  repre- 
sented the  national  idea.  The  triumph  of  the 
national-liberal  party,  which  came  speedily  and 
without  great  effort,  prepared  the  way  for  a  new 
constitution. 

The  business  of  revising  the  constitution  was 
taken  up  in  earnest  by  a  commission  in  Febru- 
ary, 1848.  This  commission  was  composed  of 
the  first  of  each  canton's  ambassadors  at  the 
Diet,  and  all  the  cantons  and  half-cantons  were 
represented,  except  Neufchatel  and  AppenezU- 
Interior.  In  May  the  work  of  the  commission 
was  finished,  and  the  draft  of  the  constitution 
was  brought  before  the  Diet,  where  it  was  care- 
fully discussed  and  amended,  and  finally  submit- 
ted to  the  several  cantons.  Fifteen  and  a  half 
cantons  voted  to  accept  it.'     These  affirmative 

'These  were:  Zurich,  Bern,  Luzern,  Glarus,  Freiburg,  Solo- 
thurn,  Basel,  Schaflfhausen,  Appenzell-Exterior,  St.  Gallen, 
Graubiinden,  Aargau,  Thurgau,  Vaud,  Neufchatel,  and  Geneva. 
The  fourteen  and  a  half  cantons  which  voted  for  the  amend- 
ments of  1874  were:  Zurich,  Bern,  Glarus,  Solothurn,  Basel, 
Schaffliausen,  Appenzell-Exterior,  .St.  Gallen,  Graubiinden, 
Aargau,  Thurgau,  Ticino,  Vaud,  Neufchatel,  and  Geneva. 


ANTECEDENTS  OF  SWISS  FEDERALISM.      55 

votes  embraced  not  only  a  majority  of  all  the 
cantons,  but  also  a  large  majority  of  the  Swiss 
citizens.  On  the  I2th  of  September,  the  Diet  an- 
nounced that  the  constitution  had  been  adopted, 
and  invited  the  several  cantons  to  elect  mem- 
bers of  the  two  legislative  assemblies.  All  of 
the  cantons  without  exception  acceded  to  the 
will  of  the  majority,  and  acted  in  accordance 
with  the  invitation  of  the  Diet.  By  these  steps 
a  federal  government  was  put  in  the  place  of 
the  previously  existing  unstable  union  of  can- 
tons; and  the  organization  thus  established  has 
been  maintained  till  the  present  time  without 
fundamental  modification.  The  changes  of  1865 
and  1874  were  •"  ^^e  form  of  necessary  exten- 
sions of  the  constitutional  law.  In  the  great  re- 
form of  1848,  Switzerland  was  specially  favored 
by  the  revolutionary  movement  of  the  time, 
which  engaged  the  attention  of  her  neighbors, 
and  by  the  measurably  successful  example  of  a 
federal  republic  in  America. 


CHAPTER    III. 

THE  DISTRIBUTION    OF   POWER. 

Like  the  constitutions  of  the  federal  republics 
of  Mexico,  Venezuela,  and  Argentine,  and  un- 
like those  of  Colombia  and  the  United  States, 
the  Swiss  constitution  begins  by  invoking  the 
name  of  God.  Then,  in  the  preamble  and  sec- 
ond article,  the  purposes  of  the  law  are  set  forth, 
which  are  to  strengthen  the  union  of  the  cantons, 
to  maintain  and  increase  the  unity,  power,  and 
honor  of  the  Swiss  nation,  to  insure  the  inde- 
pendence of  the  country  against  dangers  from 
without,  to  preserve  internal  tranquillity  and  or- 
der, to  protect  the  liberty  and  rights  of  the 
members,  and  to  increase  their  common  pros- 
perity. This  statement  of  aim  may  be  com- 
pared with  that  contained  in  the  Constitution  of 
the  United  States,  which  is  ordained  "  in  order 
to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  com- 
mon defense,  promote  the  general  welfare,  and 


DISTRIBUTION  OF  POWER.  57 

secure  the  blessin_s[s  of  liberty  to  ourselves  and 
our  posterity."^ 

Since  the  Swiss  constitution  is  the  fundamental 
law  of  the  state,  its  makers  are  recognized  as 
the  legal  sovereign  in  Switzerland.  This  sover- 
eign, then,  consists  of  a  body  embracing  a  ma- 
jority of  the  voters  so  distributed  as  to  make  a 
majority  in  at  least  twelve  of  the  cantons  ;  for  by 
such  a  body  both  the  constitution  of  1848  and 
the  amendments  of  1874  were  adopted,  and  by  a 
like  body  the  present  constitution  may  at  any 
time  be  amended  or  revised.  And  the  revision 
shall  be  effected  by  the  means  provided  for  fed- 
eral legislation.  Whenever  one  house  of  the 
federal  legislature  decrees  the  revision  of  the  con- 
stitution, and  the  other  house  does  not  consent, 
or,  indeed,  whenever  fifty  thousand  Swiss  citizens 
having  the  right  to  vote  demand  the  revision, 
a  vote  of  the  Swiss  people  shall  be  called  to  de- 
termine whether  the  constitution  shall  be  re- 
vised or  not.  If  in  either  of  the  cases  thus  sub- 
mitted to  popular  vote,  the  majority  of  the 
citizens  voting  shall  decide  affirmatively,  the  two 

'  These  clauses  appear  to  have  been  transferred  to  the  consti- 
tution of  the  Argentine  Republic,  where  they  occur  in  the  pre- 
amble, in  the  following  words:  "Con  el  objeto  deconstituir  la 
union  na.ciona\,  a /ianzar  la  justkia,  consolidar  la  paz  interior, 
proveer  a  la  defcnsa  comun,  promover  el  bieiwstarjeueral,  i  asei^- 
rar  los  beneficios  de  la  libertad  para  nosotros,  para  nuestra  pos- 
teridad,  i  para  todos  los  hombres  del  niundo  que  quieran  habitat 
el  suelo  argentino." 


58  GOVERNMENT   OF    SWITZERLAND. 

houses  of  the  legislature  shall  be  constituted 
anew  to  undertake  the  revision.  The  constitu- 
tion having  been  revised  in  this  manner  by  the 
legislative  bodies,  a  second  vote  of  the  people 
is  demanded  for  its  acceptance.  Accordingly, 
Article  121  provides  that  "the  revised  federal 
constitution  becomes  in  force  whenever  it  has 
been  accepted  by  the  majority  of  the  Swiss  citi- 
zens taking  part  in  the  voting,  and  by  the  ma- 
jority of  the  cantons."  The  result  of  the  popu- 
lar vote  in  this  matter  is  considered  the  vote  of 
the  canton,  and  the  decision  of  the  half  canton 
is  counted  as  a  half  vote. 

While  the  Swiss  constitution  was  adopted  and 
may  be  amended  by  the  direct  vote  of  the 
people,  the  constitution  of  the  United  States 
acquired  validity  through  its  adoption  by  con- 
ventions of  nine  of  the  thirteen  States.  The 
direct  vote  of  the  people  was  not  required  for  its 
adoption,  nor  is  such  a  vote  required  for  its 
amendment.  According  to  Article  V,  "the 
Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  constitution,  or,  on  the  application 
of  the  legislatures  of  two-thirds  of  the  several 
States,  shall  call  a  convention  for  proposing 
amendments,  which,  in  either  case,  shall  be  valid 
to  all  intents  and  purposes  as  part  of  this  Con- 
stitution,   when  ratified  by   the    legislatures  of 


DISTRIBUTION  OF  POWER.  59 

three-fourths  of  the  several  States,  or  by  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  proposed  by 
the  Congress."  The  alternative  method  here 
provided  is  wanting  in  the  constitution  of  Mex- 
ico, where,  in  order  to  effect  a  change,  it  is  re- 
required  that  the  Congress  of  the  Union,  by  a 
vote  of  two-thirds  of  the  members  present,  agree 
to  reforms  or  additions,  and  that  these  be  ap- 
proved by  the  majority  of  the  legislatures  of 
the  States.^  In  both  of  these  instances,  as  in 
the  cases  of  Colombia,^  Venezuela,^  and  the  Ar- 

'  Constitucion  de  los  Estados  Unidos  Mejicanos,  Art.  127. 

^  Article  92  of  the  constitution  of  the  Republic  of  Colombia 
contains  the  following  provisions  relative  to  amendment: — 

"Esta  constitucion  podrd  ser  reformada  total  6  parcialmente 
con  las  formalidades  siguientes: 

"l.  Que  la  reforma  sea  solicitada  por  lamayoria  de  las  lejis- 
laturas  de  los  estados; 

"2.  Que  la  reforma  sea  discutida  i  aprobada  en  dmbas  cdm- 
aras  conforme  d  lo  establecido  para  la  espedicion  de  las  leyes;  i 

"3.  Que  la  reforma  sea  ratificada  por  el  voto  undnime  del 
senado  de  plenipotenciarios,  teniendo  un  voto  cada  estado. 

"Tambien  puede  ser  reformada  por  una  convencion  convocada 
al  efecto  por  el  congreso,  A  solicitud  de  la  totalidad  de  lafs  lejis- 
laturas  de  los  estados,  i  compuesta  de  igual  niimero  de  diputa- 
dos  por  cada  estado." 

^  The  amendment  of  the  constitution  of  Venezuela  is  provided 
for  in  the  following  terms  of  Article  122: — 

"Esta  constitucion  podrd  ser  reformada  total  6  parcialmente 
por  la  lejislatura  nacional,  si  lo  solicitare  la  mayoria  de  las 
lejislaturas  de  los  estados;  pero  nunca  se  hard  la  reforma  sino 
sobre  lospuntosd  que  se  refieran  las  solicitudes  delos  estajlos." 


6o  GOVERNMENT   OF    SWITZERLAND. 

gentine  Republic/  the  will  of  the  people  ex- 
presses itself  through  the  fundamental  law  only 
indirectly.  In  Switzerland,  the  voters  are  con- 
stituent elements  of  the  legal  sovereign,  while  in 
the  other  cases  the  legal  sovereign  is  made  up 
of  organizations  of  representatives  or  delegates 
who  have  received  their  authority  from  the 
voters.  That  body  in  a  state  is  legally  sover- 
ei  n  in  which  is  vested  the  power  to  make  or 
amend  the  fundamental  law  of  the  state;  but 
"that  body  is  'politically'  sovereign  or  supreme 
in  a  state  the  will  of  which  is  ultimately  obeyed 
by  the  citizens  of  the  state.  In  this  sense  of 
the  word  the  electors  of  Great  Britain  may  be 
said  to  be,  together  with  the  Crown  and  the 
Lords,  or,  perhaps,  in  strict  accuracy,  independ- 
ently of  the  King  and  the  Peers,  the  body  in 
which  sovereign  power  is  vested.  For,  as  things 
now  stand,  the  will  of  the  electorate  and  cer- 
tainly of  the  electorate  in  combination  with  the 
Lords  and  the  Crown,  is  sure  ultimately  to  prevail 
on  all  subjects  to  be  determined  by  the  British 
Government."^  "But  the  legally  sovereign 
power  is   assuredly,  as   maintained   by   all   the 

'  In  the  Argentine  Republic,  according  to  Article  30,  "La 
constitucion  puede  reformarse  en  el  todo  6  en  cualquiera  de  sus 
partes.  La  necesidad  de  reforma  debe  ser  declarada  por  el 
congreso  con  el  voto  de  dos  terceras  partes,  al  menos,  de  sus 
miembros,  pero  no  se  efectuarA  sino  por  una  convencion  convo- 
cada  al  efecto." 

*  Dicey,  "The  Law  of  the  Constitution,"  66-67. 


DISTRIBUTION  OF  POWER.  6 1 

best  writers  on  the  constitution,  nothing  but 
Parliament."^  If  we  adopt  the  line  of  distinc- 
tion here  drawn  by  Professor  Dicey,  the  legal 
sovereign  in  Switzerland  appears  to  be  identical 
with  that  body  which  is  politically  sovereign, 
while  in  the  United  States  and  the  other  federal 
states  mentioned,  these  two  bodies  are  distinct. 
Inasmuch  as  the  sovereign  of  a  federal  state 
requires  much  time  for  action,  and  can  act  only 
at  considerable  intervals,  it  is  necessary  that 
there  should  exist  efficient  agents,  receiving 
authority  from  the  sovereign,  for  the  performance 
of  specified  parts  of  the  business  of  government. 
In  such  a  state,  the  larger  part  of  the  powers  of 
the  sovereign  are  distributed,  subject  always  to 
recall,  by  the  sovereign  itself  to  three  govern- 
mental departments,  which  hold  in  relation  to 
the  sovereign  the  position  of  agents.  The  sov- 
ereign is  here  conceived  of  as  the  holder  of  the 
absolute  power  of  a  nation,  which  it  delegates  to 
subordinates  of  its  own  creation  or  of  its  adop- 
tion ;  and  every  nation  possesses  such  a  power. 
"It  may  have  any  organization,  from  the  purest 
democracy  to  the  most  absolute  monarchy;  but 
considered  in  its  relations  to  the  rest  of  mankind 
and  to  its  own  individual  members,  it  must  ex- 
ist, to  the  extent  at  least  of  enacting  laws  for 
itself,   as    an    integral,    independent,  sovereign 

'  Diceyt  69. 


62  GOVERNMENT   OF    SWITZERLAND. 

society  among  the  other  similar  nations  of  the 
earth.  Its  government,  or,  in  other  words,  the 
permanent  agents  which  it  has  established  to 
make  efficient  its  organic  will,  must  be  so  far  inde- 
pendent that  no  other  power  may  authoritatively 
control  its  legislation,  no  other  state  may  inter- 
fere, and,  according  to  any  received  and  admitted 
constitution  of  things,  prescribe  what  the  laws 
shall  be." '  In  a  nation  with  a  federal  form  of 
government,  the  three  departments  of  the  cen- 
tral organization  already  mentioned  are  not  the 
only  factors  that  may  be  viewed  as  agents  of  the 
sovereign  power.  The  various  offices,  organiza- 
tions, or  institutions  for  exercising  power  in  the 
subordinate  political  societies,  may  also  be  re- 
garded as  the  sovereign's  organs  or  agents;  for 
if  not  created  by  the  sovereign,  the  sovereign 
has  accepted  them,  acts  through  them,  and  pre- 
serves their  existence.  The  distribution  of  power 
on  which  much  stress  has  been  laid  since  Mon- 
tesquieu's celebrated  utterance,'^  has  a  larger 
meaning  than  that  which  has  usually  been  as- 
cribed to  it.  It  involves  the  idea  of  a  nation 
possessing,  in  itself  an  inherent,  an  absolute, 
power  of  self-direction,  giving  over  to  specific 
departments,  or  special  classes,  or  subordinate 
organizations,  or  allowing  to  remain  in  subor- 
dinate bodies,  such  portions  of  this  power  as  may 

^  Pomeroy,  "Constitutional  Law,"  30. 

2  "De   L'   Esprit  des  Lois,"  L.  II,  ch.   VI. 


DISTRIBUTION  OF  POWER.  63 

be  consistent  with  its  free  determination.  It  in- 
volves not  only  such  an  allotment  of  power,  but 
also  the  relation  of  State  to  federal  authority.  In 
a  word,  wherever  in  a  nation  political  power  exists 
and  is  exercised,  except  in  the  case  of  the  direct 
action  of  the  sovereign,  it  exists  and  is  exercised 
as  a  virtual  emanation  from  the  sovereign. 

An  important  difference  between  a  simple 
democracy,  like  Uri  or  Appenzell,  and  a  vast 
and  complex  nation,  like  England,  the  United 
States,  or  the  German  Empire,  lies  in  the  lack 
of  distribution  of  the  sovereign  power  in  the  one 
case  and  the  extensive  distribution  necessitated 
by  the  physical  conditions  of  the  other. 

In  the  case  of  the  great  nation,  however,  as 
the  physical  obstacles  are  overcome,  there  ap- 
pears to  be  a  tendency  to  return  to  the  ideal  of 
primitive  democracy,  in  other  words,  for  the 
political  sovereign  to  crowd  itself  as  near  as 
possible  to  the  current  business  of  government. 
Viewed  with  respect  to  the  distribution  of  power, 
the  present  position  of  England's  central  gov- 
ernment suggests  that,  after  a  long  series  of  ex- 
periments, the  nation  has  returned  almost  to  its 
point  of  departure.  The  primitive  government 
of  the  existing  English  stock  in  England  was 
the  government  of  an  isolated  community,  in 
which  the  whole  power,  as  is  ihe  case  to-day  in 
some  of  the  democratic  cantons  of  Switzerland, 


64  GOVERNMENT   OF   SWITZERLAND. 

rested  in  the  hands  of  the  freemen,  and  was  ex- 
ercised immediately  by  the  whole  body  itself,  or 
by  its  directly  appointed  agents.  This  was  a 
form  of  government  adapted  only  to  the  limited 
area  of  the  primitive  settlement.  When  these 
primary  groups  became  united,  and  the  area  of 
the  enlarged  dominion  became  so  great  as  to 
prevent  the  whole  body  of  freemen  from  partici- 
pating directly  in  the  affairs  of  the  state,  the 
first  step  was  taken  towards  setting  up  the  rule 
of  an  aristocracy  presided  over  by  a  king.  Im- 
mediately after  the  union  of  the  petty  kingdoms 
of  Anglo-Saxon  England  into  the  kingdom  of 
Ecgberht,  the  popular  element  of  the  nation  did 
not  participate  in  the  affairs  of  the  central  gov- 
ernment. The  circumstances  of  expanded  do- 
minion had  relegated  the  activity  of  the  great 
mass  of  the  people  to  local  concerns.  The  con- 
ditions were,  therefore,  favorable  to  the  existence 
of  an  aristocratic  government;  and  that  the  aris- 
tocracy which  governed  the  English  people  be- 
tween the  tenth  and  thirteenth  centuries  was 
something  more  than  an  aristocracy  of  wealth 
or  of  birth,  is  sufficiently  indicated  by  the  name 
of  the  assembly  through  which  its  power  was 
exercised.  This  was  England's  experiment 
with  a  pure  aristocracy;  and  the  ease  with  which 
it  was  maintained  at  tjiis  time  was  due  princi- 


DISTRIBUTION  OF  POWER.  65 

pally  to  two  causes:  First,  the  ignorance  of  all 
but  the  few;  second,  the  absence  of  any  tried 
and  approved  means  by  which  the  great  body 
of  the  people  could  put  forth  their  power  while 
scattered  over  all  England.  The  discovery  and 
application  of  means  by  which  the  power  of  the 
people  could  be  exerted  under  these  conditions 
closed  the  period  of  aristocratic  exclusiveness  in 
English  politics.  There  followed  a  new  experi- 
ment in  the  distribution  of  power. 

The  admission  of  city  and  county  representa- 
tives to  Parliament,  in  the  thirteenth  century, 
was  an  invasion  of  the  aristocratic  monopoly 
in  government,  and  was  a  step  towards  the  in- 
troduction of  the  democratic  element  to  co- 
operation with  the  aristocracy.  The  immediate 
departure  from  aristocracy  was,  however,  very 
slight,  inasmuch  as  the  counties  in  the  begin- 
ning could  be  represented  only  by  members  of 
the  nobility,  and  the  representatives  of  the  cities 
were  elected  by  exclusive  corporations.  But 
even  this  slight  concession  was  followed  by  a 
reaction  in  the  form  of  the  disfranchising  statute 
of  1430.  From  this  time  onward  the  political 
history  of  England  shows  movement  along  sev- 
eral lines:  First,  to  increase  the  functions  of  the 
central  government  at  the  expense  of  the  local 
organizations;  second,  to  increase,  in  the  central 
5 


66  GOVERNMENT  OF   SWITZERLAND. 

government  itself,  the  power  of  the  lower  house 
at  the  expense  of  the  Crown  and  the  Lords; 
third,  to  make  the  lower  house  the  creature  of  a 
larger  and  larger  number  of  voters,  and  to  bring 
the  voters  into  an  ever  enlarging  knowledge  of, 
and  a  more  immediate  participation  in,  the  cur- 
rent affairs  of  the  government.  These  changes 
have  resulted  already  in  making  the  ministry 
merely  a  committee  of  the  lower  house,  and  the 
lower  house  a  committee  of  the  enfranchised 
part  of  the  population. 

The  connection  between  the  English  ministry 
of  to-day  and  the  great  national  party  which  it 
represents  is  scarcely  less  immediate  than  that 
which  existed  between  the  original  Saxon 
settlers  and  their  elected  officers.  The  Crown 
and  Lords  still  exist,  but  an  independent  de- 
cision on  the  part  of  either  is  no  longer  to  be 
thought  of.  Under  the  constitution,  the  Crown 
is  endowed  with  the  power  of  an  absolute  veto, 
but  its  exercise  at  present  would  be  regarded  as 
a  revolution,  so  completely  has  custom  super- 
seded the  law  of  two  centuries  ago.  And  the 
House  of  Lords  has,  under  the  same  constitu- 
tion, the  power  to  reject  any  measure  passed  by 
the  Commons.  But  no  sooner  is  there  mani- 
fest, on  the  part  of  the  Lords,  a  disposition  to 
exercise  this  power,  than  the  nation  begins  to 


DISTRIBUTION  OF  POWER.  6y 

bestir  itself  to  coerce  them  to  conform  their 
action  to  the  will  of  the  dominant  party.  The 
forms  of  these*  institutions  still  continue,  but 
their  ancient  power  has  drifted  back  to  the  free- 
men, who  exercise  it  in  the  most  direct  manner 
consistent  with  their  large  numbers.  The  action 
of  the  ministry  must  conform  to  the  will  of  the 
majority  of  the  Commons,  and  the  majority  of 
the  Commons  must  be  in  accord  with  the  ma- 
jority of  the  electors.  In  this  necessary  har- 
mony of  the  governmental  executive  and  the 
bulk  of  the  electors,  is  the  ground  for  the  state- 
ment that  after  several  centuries  of  experiments 
in  the  matter  of  the  distribution  of  power,  the 
English  people  have  returned  to  a  position  not 
essentially  different  from  that  from  which  they 
set  out, 

■  If  we  attempt  to  explain  this  drift  of  political 
power  in  England,  we  shall  find  an  important 
cause  of  it  in  the  difficulty — perhaps  in  the  im- 
possibility— of  so  distributing  this  power  that 
the  several  departments  of  the  government  shall 
be  held  in  a  just  and  even  balance.  If  this  bal- 
ance is  disturbed  by  one  department  receiving 
more  power  than  is  necessary  to  place  it  in 
equilibrium  with  the  other  departments,  this  one 
department  is  thus  enabled  to  encroach  on  the 
others,  ^d,  in  the  course  of  time,  to  dominate  in 
the   government.      The    power    to    loosen    or 


68  GOVERNMENT  OF    SWITZERLAND. 

tighten  the  national  purse-strings  was  the  spe- 
cially efficient  possession  of  the  Commons,  and 
constituted  the  principal  advantage  over  the 
other  departments,  which  have  finally  succumbed 
to  its  supremacy. 

If  the  political  drift  which  we  have  observed 
in  England  has  an  efficient  cause  in  an  inevita- 
bly unequal  distribution  of  power,  we  must  look 
for  a  similar  tendency,  or  a  tendency  to  the  su- 
premacy of  some  one  department,  whenever  an  at- 
tempt is  made  to  distribute  the  power  which  is 
vested  in  the  sovereign  of  the  nation.  Assuming 
the  permanence  of  the  fundamental  principles 
of  human  nature,and  the  continuanceof  thedom- 
inant  social  tendencies  which  are  revealed  in  his- 
tory, the  course  of  England's  political  progress 
appears  as  the  type  of  the  necessary  evolution 
of  popular  government.  This  gradual  drift  of 
power  towards  some  given  point  in  the  organ- 
ism is  illustrated  by  the  history  of  federal  gov- 
ernments. Even  the  brief  history  of  the  United 
States  shows  this  tendency  of  power  in  the  re- 
lation of  the  States  to  the  federal  government. 
It  was  supposed  by  the  makers  of  the  federal 
Constitution  that  they  had  so  distributed  the 
political  power  of  the  nation  between  the  State 
and  federal  governments  that  there  would  be 
no  encroachment  of  the  one  on  the  other.  But, 
by  placing  the  power  of  final  interpretation    in 


DISTRIBUTION  OF  POWER.  69 

one  of  the  organs  of  the  federal  government, 
as  it  was  necessary  to  do  in  order  that  the  Fed- 
eration might  be  held  together,  'conditions  were 
established  favorable  to  the  gravitation  of  power 
toward  the  center;  for  the  human  quality  of 
the  government  made  it  more  than  probable 
that,  in  cases  of  doubt,  the  interpretation  would 
be  always  in  its  own  favor.  For  this  and  other 
reasons,  wherever  in  the  history  of  the  world  we 
find  a  federation  having  an  internal  organization 
sufficiently  strong  to  maintain  its  own  existence, 
we  observe  an  inevitable  drift  of  power  from  the 
several  States  to  the  central  government.  This 
is  true  of  all  the  federations,  from  the  Achaian 
League  to  the  United  States,  that  have  been 
sufficiently  permanent  to  win  a  place  in  hi.story. 
Each  of  these  governments  shows  the  failure  of 
an  attempt  to  distribute  the  national  power  in 
such  a  manner  as  to  preserve  the  State  and 
federal  governments  in  equilibrium. 

The  specific  movement  of  power  which  has 
been  observed  in  the  history  of  the  English  gov- 
ernment, is  manifest  also  within  the  central  gov- 
ernment of  the  United  States.  There  is  to  be 
noted,  however,  this  difference:  in  England,  the 
absence  of  a  written  constitution,  and  the  fact 
that  the  national  legislature  has  been  the  legal 
sovereign,  have  permitted  this  body,  without  an 


70  GOVERNMENT  OF    SWITZERLAND. 

appeal  to  any  higher  authority,  to  modify  the 
government,  or  to  shift  the  preponderence  of 
power  from  one  department  or  institution  to  an- 
other; while  in  the  United  States,  similar  changes 
have  been  brought  about,  and  under  the  contin- 
ued operation  of  existing  forces,  will  hereafter 
be  brought  about,  through  judicial  stretching 
and  twisting  of  a  written  constitution,  or  through 
amendments  of  the  constitution  itself  The 
presence  of  a  written  constitution  only  renders 
slower  the  movement  toward  the  accumulation 
of  power  at  a  single  point  in  the  governmental 
organization. 

If  we  find  in  England  alone  the  culmination 
of  the  tendency  to  bring  the  affairs  of  gov- 
ernment into  the  immediate  control  of  the  elect- 
ors, it  must  be  remembered  that  in  England 
alone  there  have  been  six  hundred  years  of 
popular  rule.  In  other  states  with  popular 
rule,  whether  with  restricted  or  universal  suf- 
frage, in  which  representatives  of  the  people 
have  the  right  to  initiate  laws,  and  consequently 
the  power  to  shape  the  governmental  policy, 
there  are  present  the  conditions  and  internal 
forces  which  conduce  to  the  attainment  of  the 
same  end.  There  appears  to  be  wanting  only 
time  to  enable  all  popular  governments  to  reach 
essentially  the  same  position,  politically,  that 
England  has  already  reached,  or  that  position 


DISTRIBUTION  OF  POWER.  yi 

in  which  the  English  will  find  themselves  on  the 
attainment  of  universal  suffrage.  All-the  dom- 
inant forces  of  existing  Aryan  society,  those  de- 
rived from  the  spread  of  popular  education,  from 
the  increasing  intercourse  between  communities 
and  classes,  and  from  the  growing  recognition 
of  political  equality,  contribute  to  the  establish- 
ment of  this  tendency.  It  finds  confirmation, 
moreover,  in  the  history  and  organization  of 
popular  governments  everywhere.  Our  national 
history  shows  that  in  the  United  States  there 
has  been  a  marked  drift  of  power  towards  the 
central  government,  and  in  the  central  govern- 
ment itself,  a  drift  of  power  towards  the  lower 
house.  In  short,  every  representative  govern- 
ment in  which  the  representatives  of  the  people 
have  the  right  to  initiate  laws,  however  the  po- 
litical power  of  the  nation  may  have  been  dis- 
tributed at  first,  tends  to  move  in  a  certain 
course,  whose  end,  or  culmination,  is  the  nearest 
practicable  connection  between  the  voters  of  the 
dominant  national  party  and  the  actual  business 
of  government.  When  this  point  is  reached, 
and  the  whole  burden  of  governing  a  great  na- 
tion rests,  as  in  England,  on  a  committee  of  the 
representatives  of  the  people,  the  political  cycle 
of  that  nation  is  run.  And  when  it  is  found,  as 
it  has  been  found  in  England,  that  the  business 
devolving  upon  the  governing  committee  is  so 


72  GOVERNMENT  OF   SWITZERLAND. 

multifarious  and  complex  as  to  render  its  proper 
execution  impossible,  the  time  has  arrived  for 
a  redistribution  of  power. 

After  the  passage  of  one  more  reform  bill, 
making  the  suffrage  universal,  this  will  be  es- 
sentially the  position  of  England.  In  view  of 
the  fact  that  the  political  power  formerly  pos- 
sessed by  the  Crown  and  the  Lords  has  been 
transferred  to  the  Commons,  and  that  the  Com- 
mons have  become  the  creatures  of  the  whole 
enfranchised  part  of  the  nation, and  the  electors 
are  thus  brought  as  near  as  practicable  to  the 
actual  conduct  of  affairs,  there  remains  no  im- 
portant step  to  be  taken  in  this  direction. 

The  tendency  of  centuries  having  found  here 
its  culmination,  there  are  abundant  reasons  for 
supposing  that  the  next  important  change  in 
English  political  life  will  be  the  result  of  a  great 
reconstructive  effort,  put  forth  to  create  new  and 
efficient  organs  of  power  in  place  of  the  Crown 
and  the  Lords;  or,  more  particularly,  in  place  of 
the  Lords,  whose  functions,  aside  from  their  ac- 
tivity in  behalf  of  their  own  perpetuation,  have 
dwindled  to  merely  those  of  opposition,  yet  an 
opposition  which  may  always  be  overcome  in 
the  last  resort. 

At  this  point — that  is,  at  the  culmination  of 
this  tendency  to  bring  the  electors  into  the 
closest  possible  proximity  to  governmental  af- 


DISTRIBUTION  OF  POWER.  73 

fairs — it  is  asserted  that  there  must  be  a  redis- 
tribution of  power.  The  reasons  for  this  asser- 
tion may  not  be  exhaustively  given.  It  may, 
however,  be  said  in  general  that  the  attainment 
of  rational  freedom  is  one  of  the  chief  ends  of 
the  state,  and  that  it  is  only  through  the  means 
of  political  institutions  that  this  end  may  be 
attained.  If,  therefore,  the  tendency  which  we 
have  considered  is  to  break  down  and  ignore 
these  institutions,  it  is  clear  that  they  must  be 
revived,  or  new  ones  created,  before  the  state 
can  be  in  a  position  to  secure  its  legitimate  pur- 
pose; and  the  revival  or  creation  of  political 
institutions  is  simply  another  phrase  for  the  dis- 
tribution or  redistribution  of  political  power.  It 
may  be  stated,  moreover,  as  a  general  principle 
of  social  activity,  that  there  is  a  tendency  in 
society  to  put  forth  its  efforts  for  self-conserva- 
tion and  progress,  in  the  line  of  least  resistance; 
and  it  follows  from  this  that  no  institutions 
which  have  lost  all  their  functions  but  those  of 
obstruction,  can  permanently  remain  a  part  of 
the  social  organism.  They  will  ultimately  either 
be  supplanted  by  others,  or  be  once  more  en- 
dowed with  the  power  of  positive  action;  and 
to  effect  either  of  these  results  there  will  be 
necessary  a  redistribution  of  that  power  which 
has  drifted  into  the  hands  of  the  people.  If  at 
this  point  such  redistribution  does  not  take  place, 


74  GOVERNMENT  OF    SWITZERLAND. 

we  have  to  suppose  that  all  that  activity  which, 
since  the  beginning  of  political  life,  has  been 
devoted  to  a  fancied  improvement  of  the  form 
of  the  government,  will  at  once  and  forever  cease, 
a  supposition  entirely  at  variance  with  the  known 
laws  of  social  activity.  There  is  another  and  a 
practical  consideration  which — the  supposition 
having  been  reached — will  urge  imperatively 
the  redistribution  of  power.  I  refer  to  the 
actual  inability  of  the  ministers,  where  the 
power  of  a  great  nation  rests  with  them,  as  in 
England,  to  carry  to  a  proper  and  successful 
issue  all  the  varied  and  far-reaching  undertak- 
ings that  devolve  upon  them. 

England,  therefore,  seems  about  to  be  called 
upon  to  face  the  great  question  of  the  redistri- 
bution of  her  political  power.  By  this  state- 
ment, it  is  not  meant  that  the  work  must  be  un- 
dertaken this  year  or  the  next,  but  that  it  is  a 
task  of  the  future  from  which  there  appears  no 
escape.  If,  moreover,  present  tendencies  are  in- 
dications of  future  conditions,  it  is  a  task  which 
will  ultimately  present  itself  to  every  nation 
whose  government  rests  for  its  primary  founda- 
tion on  the  will  of  the  people.  In  a  federal  re- 
public, like  the  United  States,  the  tendency  ob- 
served in  England  may  exist,  but  be  checked 
from  time  to  time  by  constitutional  amendment 
or   by   decisions   of  the    Supreme  Court,  thus 


DISTRIBUTION  OF  POWER.  75 

avoiding  an  in:iportant  redistribution  at  any  one 
tinne.  In  all  governments  there  are  forces  which 
conduce  to  the  same  end,  although  in  some  the 
full  manifestation  may  be  prevented  by  the 
operation  of  counteracting  forces  which  redis- 
tribute the  power  as  fast  as  it  is  aggregated. 
While,  however,  it  may  be  readily  admitted  that 
the  history  of  our  national  life  shows  a  tendency 
to  place  more  and  more  power  in  the  central 
government,  it  may,  perhaps,  be  denied  that 
there  is  any  evidence  of  power  drifting  away 
from  the  President  and  the  Senate,  and  tending 
to  concentrate  itself  in  the  House  of  Representa- 
tives. A  careful  examination,  however,  will  re- 
veal certain  considerations  drawn  from  the 
nature  of  the  lower  house,  and  from  its  relation 
to  other  departments  of  the  government,  that 
suggest  its  ultimate  supremacy,  and  the  gradual 
crowding  of  the  people  nearer  and  nearer  to  the 
actual  exercise  of  power.  To  indicate  two  or 
three  of  these  we  may  mention:  i.  The  rela- 
tively greater  and  greater  importance  which  the 
finances  are  assuming  in  the  affairs  of  legislation 
and  administration,  coupled  with  the  fact  that 
in  these  matters  the  lower  house  alone  possesses 
the  right  of  the  initiative.  2,  The  claim  of  the 
lower  house  to  be  heard  in  the  making  of  trea- 
ties, which  is  fixed  by  the  Constitution  clearly 
as  a  function  of  the  President  and  the  Senate. 


^6  GOVERNMENT  OF    SWITZERLAND. 

3.  The  more  intimate  relation  which  members 
of  this  house  hold  to  the  great  body  of  the  peo- 
ple, and  the  greater  share  of  popular  confidence 
which  for  this  reason  they  are  likely  to  enjoy; 
or,  in  other  words,  the  increasing  power  and 
prestige  which,  in  the  progress  of  democracy, 
the  members  of  the  lower  house  are  to  acquire 
more  and  more  abundantly,  as  the  bearers  of 
the  most  direct,  and  consequently  the  most 
authoritative,  message  from  the  electors.  4.  The 
demand  of  the  voters  that  the  representatives 
shall  pledge  themselves  to  vote  as  directed  by 
their  constituents. 

These  are  a  few  of  a  very  long  list  of  facts 
which  indicate  not  only  the  disposition  of  the 
great  body  of  electors  to  lay  their  hands  directly 
on  the  machinery  of  government,  but  also  their 
ability  to  advance  toward  their  desired  end. 
Our  political  drift,  then,  is  manifestly  to  bring 
the  people  nearer  the  actual  operations  of  legis- 
lation and  administration.  The  happy  feature 
of  a  federal  government  in  this  connection  is, 
that  the  remedy  of  too  great  an  accumulation  of 
power  at  any  one  point  is  found  in  an  amend- 
ment of  the  constitution;  and  the  authority  to 
amend  is  so  distributed  as  to  make  it  antagonis- 
tic to  the  absorption  of  all  power  at  any  single 
point  of  the  political  organism.  The  question 
of  redistribution  of  power  in  such  a   state  is, 


DISTRIBUTION  OF  POWER.  TJ 

therefore,  a  very  simple  affair,  but  with  a  gov- 
ernment like  that  of  England  it  is  a  question  of 
adopting  a  new  form.  It  is,  therefore,  pertinent 
to  inquire  into  the  constitutional  possibilities  of 
the  future;  that  is  to  say,  viewing  the  future  from 
the  standpoint  of  the  existing  forces  of  society, 
what  forms  of  government  are  likely  to  be  ac- 
cepted in  the  later  stages  of  our  social  growth  ? 
It  is,  of  course,  to  be  understood  that  there  are 
certain  general  constitutional  possibilities  which 
hold  with  respect  to  the  social  conditions  of  all 
Western  nations,  and  certain  particular  possibili- 
ties which  hold  with  respect  only  to  certain  par- 
ticular nations.  This  topic  is  of  primary  impor- 
tance, because  it  is  highly  desirable  to  know 
what  forms  of  government  have  a  chance  of  ex- 
isting in  the  future,  in  order  that,  in  advancing 
to  the  great  question  of  the  redistribution  of 
power,  arguments  may  not  be  wasted  to  show 
that  a  given  form  of  government  is  the  best 
form,  when  a  little  thoughtful  observation  and 
reflection  would  show  that  it  lies  clearly  without 
the  field  of  constitutional  possibilities.  It  may 
not  be  easy  to  determine  definitely  the  limits  of 
this  field,  yet  there  are  doubtless  some  things  in 
governmental  organization  which  Ihe  race  has 
outgrown.  If  we  can  determine  these  by  ex- 
amining the  history  of  governments  in  the  light 
of  the  inherent  tendencies  of  society,  we  can 


78  GOVERNMENT  OF    SWITZERLAND. 

indicate  certain  forms  of  political  organization 
which  it  is  useless  to  advocate,  and  by  this 
means  indicate  approximately  the  constitutional 
possibilities  of  the  future. 

There  is  probably  no  other  form  of  govern- 
ment which  accords  so  generally  with  the  pref- 
erences of  thoughtful  men  as  aristocracy.  It  is 
easy  to  persuade  one's  self  that  a  government 
of  the  best  is  the  best  form  of  government  for 
any  nation.  Yet  it  is  not  altogether  clear  that 
this  form  of  government,  as  generally  under- 
stood and  advocated,  is  not  antiquated,  and,  at 
least  as  it  appears  in  the  political  history  of  the 
world,  no  longer  among  those  forms  which 
should  be  the  aim  of  our  political  striving.  At 
any  rate,  two  questions  arise  respecting  it:  i. 
Is  its  record  such  that  its  continued  existence 
is  desirable  ?  2.  Are  the  conditions  of  modern 
life  favorable  to  its  continuance  ? 

If  we  were  to  pass  in  review  the  whole  record 
of  aristocratic  rule,  the  resulting  conclusion  would 
be  that  wherever  the  power  of  government  has 
rested  undisturbed  in  the  hands  of  an  aristocratic 
class,  this  class  has  inclined  more  and  more  to 
wield  this  power  to  its  own  material  advantage, 
while,  at  the  same  time,  the  spontaneous  life  of 
the  people  has  been  suppressed,  and  the  intelli- 
gence of  the  nation  crystallized  into  a  stiff  and 
unproductive  formalism.     Compare  aristocratic 


DISTRIBUTION  OP  POWER.  79 

Sparta  with  the  more  democratic  Athens,  or 
Venice  with  Plorence.  The  creative  intellect 
has  left  no  record  of  great  activity  under  a 
strictly  aristocratic  government. 

Regarding  the  second  question,  as  to  the 
prospects  of  any  historical  form  of  aristocracy 
under  the  conditions  of  modern  life,  there,  is 
abundant  evidence  that  it  is  not  likely  to  fit  in 
well  with  the  ideas  and  social  organization  of 
the  future.  Aristocracy  has  entered  into  the 
government  of  states  either  as  the  sole  power, 
or  as  a  power  co-ordinated  with  a  prince,  or 
with  a  body  representing  the  people,  or  with 
both.  Where  it  appears  in  the  second  form, 
that  is,  as  a  power  co-ordinated  with  another 
power  in  the  government,  it  is  the  product  of 
times  whose  fundamental  idea  as  to  the  source 
of  political  power  and  privilege  was  totally  dif- 
ferent from  that  at  present  generally  entertained. 
The  mediaeval  pretension  of  the  Pope,  that  he 
was  the  vicar  of  God  on  earth,  charged  with  the 
control  of  man's  spiritual  interests,  was  the  prac- 
tical foundation  of  that  theory  which  regarded 
the  prince,  or  head  of  the  state,  as  the  source 
of  all  the  political  power  exercised  in  the  gov- 
ernment of  the  nation ;  for  if  the  Pope  controlled 
man's  spiritual  interests,  it  was  clear  to  the 
mediaeval  mind  that  the  temporal  interests, 
which   were   plainly   inferior    to   the   spiritual. 


8o  GOVERNMENT  OF    SWITZERLAND. 

should  be  subordinated,  through  the  prince,  to 
the  bearer  of  the  high  commission  of  spiritual 
control.  Thus,  the  divine  right  to  direct  the 
worldly  concerns  of  a  nation,  to  appoint  officers, 
and  to  bestow  privileges,  descended  upon  the 
prince  through  God's  appointed  agent.  Under 
this  view,  through  the  appointment  of  the  prince, 
arose  those  aristocracies  which,  in  some  coun- 
tries, at  present  divide  the  power  with  the  popu- 
lar element.  But  the  great  revolution  of  the 
last  three  hundred  years  has  its  central  and  es- 
sential feature  in  the  introduction  and  adoption 
of  the  idea  that  whatever  power  is  exercised  in 
the  government  is  derived,  not  from  the  head 
of  the  state,  but  from  the  bulk  of  the  nation. 
This  view  is  accepted  even  by  nations  whose 
affairs  are  administered  under  the  fictions  and 
precedents  derived  from  their  earlier  history. 
The  English  furnish  an  instance  of  this.  In 
theory,  the  revolution  may  be  considered  to  be 
complete.  No  one  in  these  days  writes  as  Sir 
Robert  Filmer  wrote  in  his  "  Patriarcha."  If, 
in  official  titles  and  forms  of  administration,  we 
are  constantly  pointed  to  a  former  phase  of 
political  life,  it  is  to  be  remembered  that  these 
titles  and  forms  are  only  survivals  of  an  age 
whose  spirit  has  departed.  With  this  revolu- ' 
tion,  then,  disappears  the  head  of  the  state  as 
the  source  of  aristocratic  power  and  privilege; 


DISTRIBUTION   OF  POWER.  8 1 

at  least,  as  the  source  of  that  form  of  aristocracy 
which  is  represented  in  the  Engh'sh  peerage, 
and  which,  before  1866,  was  represented  in  the 
nobility  of  Sweden.  For  it  is  not  to  be  sup- 
posed that  a  crown  which  exists  only  by  a  par- 
liamentary title,  and  which  has  no  power  of 
independent  political  action,  will  remain  per- 
manently the  source  of  the  power  of  an  impor- 
tant department  of  the  government. 

History,  however,  shows  us  another  phase  of 
aristocracy,  which  does  not  proceed  from  the 
appointment  of  a  divinely  sanctioned  political 
head.  Such  an  aristocracy  we  find  in  those 
states  which  have  been  governed  by  a  select 
few,  without  the  co-operation  of  a  body  of  pop- 
ular representatives.  These  have  been  chiefly 
small  states,  like  the  states  of  the  Netherlands, 
some  of  the  Italian  Republics,  many  of  the 
republics  of  antiquity,  and  a  number  of  the 
cantons  of  Switzerland.  Among  the  special 
conditions  favorable  to  the  existence  of  aristo- 
cratic governments  in  these  cases  were:  First,  the 
fact  that  only  a  small  part  of  the  population 
were  really  free,  the  majority  being  in  Greece, 
slaves,  and  in  the  modern  states  feudal  vassals; 
second,  the  absence  of  the  system  of  representa- 
tion, which  was  unknown  among  the  ancients; 
third,  the  ignorance  of  the  great  body  of  the 
people,  and  their  consequent  inability  to  com- 
6 


82  GOVERNMENT  OF    SWITZERLAND. 

bine  for  their  own  advantage.  But,  in  the  course 
of  modern  progress,  all  these  conditions  have 
been  swept  away.  Slavery  and  vassalage  are 
gone,  except  as  the  latter  appears  in  the  alle- 
giance of  employees  in  great  enterprises  to  their 
employers;  and  in  place  of  the  ignorant  popu- 
lace of  the  ancient  and  mediaeval  world,  there 
has  appeared  a  lower  stratum  of  society,  suffi- 
ciently educated  to  use  the  means  of  acquiring 
information,  and  eager  to  proclaim  and  forcibly 
urge  their  own  rights,  as  interpreted  by  them- 
selves. Aristocracy  of  this  form  having  fallen 
by  the  removal  of  its  ancient  supports,  it  has  been 
rendered  practically  impossible  in  the  future, 
by  the  introduction  of  political  representation, 
and  by  the  spread  of  free  public  education, 
which  acts,  in  the  first  place,  as  a  great  leveling 
force,  and  in  the  second  place,  promotes  a  suffi- 
cient degree  of  intelligence  to  enable  the  masses 
to  perceive  the  advantage  they  may  derive  by 
employing  a  system  of  political  representation. 
Aristocracy,  then,  in  either  of  its  historical  forms, 
may  be  set  down  as  practically  outside  of  the 
constitutional  possibilities  of  the  time  towards 
which  we  are  drifting. 

These  and  other  considerations  lead  to  the 
conclusion  that  in  the  future  distribution  of 
power  in  England,  in  spite  of  the  English  love 
of  aristocracy,  the  aristocratic  element,  as  such, 


DISTRIBUTION   OF  POWER.  83 

will  disappear  from  the  government,  as  it  has  al- 
ready disappeared  from  the  governments  of  cer- 
tain other  nations.  On  this  point  the  case  of 
Sweden  is  significant,  because  Sweden  and  Eng- 
land have  followed  essentially  the  same  course 
of  political  development,  the  main  difference 
being  that  class  distinctions  have  been  more 
sharply  drawn  in  Sweden  than  in  England.  In 
England  the  representatives  of  the  counties  and 
of  the  cities  were  united  in  a  single  assembly — 
the  House  of  Commons — but  in  Sweden  each 
of  these  two  classes  of  representatives  consti- 
tuted an  assembly  by  itself  In  England  the 
nobles  and  the  clergy  joined  to  form  the  upper 
house ;  but  in  Sweden  these  classes  met  sepa- 
rately, and  constituted  the  third  and  fourth 
houses  of  the  Swedish  Parliament.  In  the 
Swedish  parliamentary  reform  of  1866,  the  aris- 
tocratic element  was  set  aside,  and  the  national 
legislature  was  made  to  consist  of  two  elective 
houses,  the  lower  formed  by  a  direct,  the  upper 
by  an  indirect,  election. 

If  there  are  reasons  which  point  to  the  dis- 
appearance of  aristocracy  from  the  governments 
to  which  our  descendants  will  pay  allegiance, 
particularly  our  English  descendants,  there  are 
still  stronger  reasons  for  regarding  absolute  mon- 
archy, of  the  Bourbon  type,  entirely  and  forever 
antiquated.     The  only  form  of  monarchy  which 


84  GOVERNMENT  OF    SWITZERLAND. 

the  dominant  forces  of  modern  political  society 
do  not  controvert,  is  that  which,  like  the  Napo- 
leonic monarchy,  has  its  constitutive  in  the  suf- 
frages of  the  nation.  And  in  one  view  this  form 
of  monarchy  appears  as  the  legitimate  outcome, 
or  ultimate  phase,  of  popular  government. 
However  the  power  in  a  republic  may  be  distrib- 
uted, however  numerous  the  checks  and  bal- 
ances set  up,  the  results  of  the  governmental 
activity  will  never  exactly  accord  with  the  wishes 
and  expectations  of  the  great  body  of  the  elect- 
ors. It  may  be  a  very  fortunate  circumstance 
in  the  long  run  that  this  is  so ;  nevertheless,  the 
fact  remains,  and  comes  back  to  the  minds  of 
the  voters  with  ever  renewed  force,  that  they  are 
living  under  a  government  nominally  directed 
by  themselves,  of  whose  results  they  have  every 
day  reason  to  complain.  They  feel  that  some- 
thing is  wrong,  and  in  view  of  this  there  arises 
distrust  of  those  in  office.  Somebody  must 
have  betrayed  a  trust,  or  everything  would  be 
right.  Restricting  the  officers  to  specific  in- 
structions is  found  to  be  impracticable.  From 
the  difficulties  of  the  situation  there  is,  to  the 
muddled  mind  of  the  voter,  no  surer  means  of 
escape  than  to  fix  upon  one  man  of  supreme 
ability  and  heavenly  intentions,  and  to  give  him 
all  power,  but  make  him  responsible  to  the  vot- 
ers. Thus  arises  the  imperial  government  which 
appears  to  have  yet  a  rdle  to  play  in  the  world. 


DISTRIBUTION  OF  POWER.  S5 

If  the  experience  and  historical  tendencies  of 
the  Aryan  race  go  for  anything,  our  descendants 
will  confine  their  allegiance  to  variations  of  two 
forms  of  government :  the  representative  re- 
public and  a  monarchy  constituted  by  popular 
suffrage.  The  former  will  almost  necessarily 
obtain  in  nations  where  skill  in  local  self-govern- 
ment has  been  acquired  and  maintained  in  prac- 
tice. On  the  other  hand,  a  nation  wanting  in 
the  traditions  and  practice  of  local  self-govern- 
ment will  be  liable  to  frequent  changes  from  one 
form  to  the  other.  In  France,where  certain  offi- 
cers of  local  government  are  appointed  by  the 
central  authority,  it  is  a  matter  of  little  moment 
to  the  great  body  of  the  people  whether  the  cen- 
tral government  is  republican  or  imperial.  The 
people  of  New  England,  however,  knowing  that 
a  transition  from  republican  to  imperial  rule 
would  involve  the  substitution  of  officers  ap- 
pointed by  a  central  government  for  their  own 
elected  local  officers,  would  not  hasten  to  make 
the  change.  The  force  of  the  tradition  of  local 
self-government  in  England,  and  the  continuing 
power  of  existing  local  organizations,  make  it 
practically  necessary  for  the  English,  in  the  work 
of  redistributing  their  political  power,  to  leave 
the  Napoleonic  form  of  monarchy  entirely  out 
of  consideration.  They,  therefore,  appear  to  be 
limited  to  some  form  of  a  representative  repub- 


86         GOVERNMENT  OF   SWITZERLAND, 

lie  as  the  outcome  of  their  reconstructive  efforts; 
and  not  unlikely  the  federal  form  will  be  found 
best  adapted  to  the  somewhat  heterogeneous 
character  of  the  present  British  Empire. 

Under  the  impression  which  the  recent  "blood 
and  iron  "  policy  of  Prussia  has  made  in  the 
world,  it  may  perhaps  be  objected  that,  although 
Germany  has  representative  institutions,  and 
even  universal  suffrage,  it  does  not  show  that 
drift  of  power  which  we  have  observed  partic- 
ularly in  England  and  in  the  United  States. 
The  objection,  however,  arises  from  an  imper- 
fect understanding  of  the  spirit  of  German  his- 
tory. As  it  regards  the  government,  the  history 
of  Germany  is  divided  into  two  parts  by  the 
Napoleonic  wars.  Between  the  middle  of  the 
tenth  century  and  the  early  part  of  the  nine- 
teenth, Germany  was  a  great  feudal  empire.  It 
differed  from  the  feudal  kingdom  of  France 
in  the  slowness  of  its  development,  and  in  the 
weakness  and  final  failure  of  the  central  power. 
The  feudal  bond  was  not  completely  broken  in 
Germany  until  1806,  when  Francis  II.  was  com- 
pelled to  lay  down  the  imperial  crown.  This 
was  the  end  of  one  phase  of  German  history. 
With  respect  to  the  imperial  government,  this 
phase  is  marked  by  a  gradual  dissolution.  The 
Congress  of  Vienna,  at  the  close  of  the  Napole- 
onic wars,  opens  the  constructive  period. 


DISTRIBUTION   OF   POWER.  87 

The  German  States  at  this  time  were  without 
any  legal  bond  of  union.  The  work  to  be  done 
was  to  take  these  fragments,  each  endowed  with 
sovereign  power,  and  mould  them  into  a  nation. 
Since  the  Congress  of  Vienna  the  Germans  have 
been  laboring  in  this  undertaking,  sometimes 
with  feeble  and  misguided  efforts,  sometimes 
with  the  mightiest  exhibitions  of  political  skill 
and  military  force  that  the  world  has  ever  seen. 
The  events  of  the  last  seventy  years  of  German 
history  become  intelligible  only  when  viewed  as 
steps  towards  founding  a  national  state.  The 
Germanic  Confederation,  formed  at  Vienna  to 
be  under  the  presidency  of  Austria,  was  too 
loose  to  furnish  an  efficient  central  government. 
It  failed,  moreover,  because  it  embraced  two 
great  powers  with  incompatible  aims.  The 
efforts  of  1848-49  were  a  second  attempt  at 
national  unity.  The  failure  of  this  attempt 
made  it  clear  that  a  new  method  must  be  tried. 
It  was  idle  to  expect  all  the  powers  to  unite  at 
once.  Those  of  one  mind  were  united  in  the 
North  German  Confederation,  which  in  1870 
had  been  extended  so  as  to  embrace  all  the 
German  States  but  Austria.  The  next  year 
the  North  German  Confederation  was  trans- 
formed into  the  German  Empire.  Through  the 
federal  constitution  of  the  empire,  the  way  is 
at  last  open  to  a  strong  national  government. 


88  GOVERNMENT  OF   SWITZERLAND. 

Some  reasons  for  this  statement  are:  First,  the 
fact  that  the  constitution  cannot  be  changed 
without  the  consent  of  Prussia,  taken  in  connec- 
tion with  the  fact  that  it  is  for  the  interest  of 
Prussia  to  have  only  such  changes  made  as  will 
strengthen  the  imperial  government,  as  com- 
pared with  the  State  governments;  second,  the 
manifest  drift  of  power  towards  the  center,  dur- 
ing the  eighteen  years  of  imperial  rule;  in  a 
word,  the  inevitable  growth  in  a  federation, 
when  the  central  government  is  made  strong 
enough  to  command  the  local  governments.  If, 
now,  the  imperial  government  is  to  maintain 
itself,  and  become  in  time  more  thoroughly  cen- 
tralized, it  is  clear  that  the  Bundesrath,  which 
is  composed  of  ambassadors  from  the  several 
States,  must  decline  in  importance  as  compared 
with  the  Reichstag,  which  is  constituted  by  uni- 
versal suffrage.  The  more  centralized  the  em- 
pire becomes,  the  more  immediate  becomes  the 
emperor's  dealing  with  the  Reichstag;  and,  un- 
der these  circumstances,  all  the  forces  that  have 
operated  in  England  to  magnify  the  Commons 
will  operate  here,  in  a  greater  or  less  degree,  to 
magnify  the  Reichstag.  Wherefore,  although 
a  position  similar  to  that  which  England  has 
reached  may  be  a  long  way  off  for  the  Germans, 
it  is,  nevertheless,  the  necessary  outcome  for  a 
government  which   places   in   the   hands  of  a 


DISTRIBUTION   OF    POWER.  89 

popular  assembly  like  the  Reichstag  matters  of 
such  vital  importance  as  the  national  revenues 
and  expenditures.  We  shall  read,  therefore,  in 
the  history  of  the  German  Empire  not  a  new 
revelation,  but  a  new  illustration  of  the  old  doc- 
trine of  the  distribution  of  political  power. 

In  a  federal  government  this  question  is  more 
complicated  than  elsewhere,  for  it  involves  not 
only  the  relation  of  department  to  department, 
but  also  the  relation  sustained  by  the  central 
to  the  local  government.  This  relation  in  all 
conspicuous  federal  states,  except  Canada,  is 
essentially  that  set  forth  in  the  tenth  amend- 
ment of  the  United  States  Constitution,  namely, 
that  the  powers  not  delegated  to  the  general 
government  "  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people."  But  in  Canada 
the  opposite  principle  obtains.  Article  91  of 
the  British  North  America  Act  affirms  that 
"  it  shall  be  lawful  for  the  queen,  by  and  with 
the  advice  and  consent  of  the  Senate  and  House 
of  Commons,  to  make  laws  for  the  peace,  order, 
and  good  government  of  Canada  in  relation  to 
all  matters  not  coming  within  the  classes  of  sub- 
jects by  this  act  assigned  exclusively  to  the 
legislatures  of  the  provinces."  The  classes  of 
subjects  thus  assigned  are  enumerated  in  Article 
92,  and  are  as  follows : — 


90  GOVERNMENT  OF   SWITZERLAND. 

"  I.  The  amendment  from  time  to  time,  not- 
withstanding anything  in  this  act,  of  the  con- 
stitution of  the  province,  except  as  regards  the 
office  of  lieutenant-governor. 

"  2.  Direct  taxation  within  the  province  in 
order  to  the  raising  of  a  revenue  for  provincial 
purposes. 

"  3.  The  borrowing  of  money  on  the  sole 
credit  of  the  province. 

"4.  The  establishment  and  tenure  of  pro- 
vincial offices,  and  the  appointment  and  payment 
of  provincial  officers. 

"5.  The  management  and  sale  of  the  public 
lands  belonging  to  the  province,  and  of  the 
timber  and  wood  thereon. 

"  6.  The  establishment,  maintenance,  and  man- 
agement of  public  and  reformatory  prisons  in 
and  for  the  province. 

"  7.  The  establishment,  maintenance,  and  man- 
agement of  hospitals,  asylums,  charities,  and 
eleemosynary  institutions  in  and  for  the  prov- 
ince, other  than  marine  hospitals. 

"8.  Municipal  institutions  in  the  province. 

"9.  Shop,  saloon,  tavern,  and  auctioneer,  and 
other  licenses,  in  order  to  the  raising  of  a  rev- 
enue for  provincial,  local,  or  municipal  purposes. 

"  10.  Local  works  and  undertakings,  other 
than  such  as  are  of  the  following  classes: — 

"^.  Lines  of  steam  or  other  ships,  railways, 


DISTRIBUTION  OF  POWER.  9 1 

canals,  telegraphs,  and  other  works  and  under- 
takings connecting  the  province  with  any  other 
or  others  of  the  provinces,  or  extending  beyond 
the  limits  of  the  province. 

"^.  Lines  of  steamships  between  the  province 
and  any  British  or  foreign  country. 

"  c.  Such  works  as,  although  wholly  situate 
within  the  province,  are  before  or  after  their 
execution  declared  by  the  parliament  of  Canada 
to  be  for  the  general  advantage  of  Canada  or 
for  the  advantage  of  two  or  more  of  the  prov- 
inces. 

"II.  The  incorporation  of  companies  with 
provincial  objects. 

"12.  Solemnization  of  marriage  in  the  prov- 
ince. 

"  13.  Property  and  civil  rights  in  the  province. 

"  14.  The  administration  of  justice  in  the 
province,  including  the  constitution,  mainte- 
nance, and  organization  of  provincial  courts, 
both  of  civil  and  of  criminal  jurisdiction,  and 
including  procedure  in  civil  matters  in  those 
courts. 

"15.  The  imposition  of  punishment  by  fine, 
penalty,  or  imprisonment  for  enforcing  any  law 
of  the  province  made  in  relation  to  any  matter 
coming  within  any  of  the  classes  of  subjects 
enumerated  in  this  section. 

"  16.  Generally  all  matters  of  a  merely  local 
or  private  nature  in  the  province," 


92  GOVERNMENT  OF   SWITZERLAND. 

Through  this  departure  from  the  general  prac- 
tice of  federations  the  Dominion  has  "  avoided," 
according  to  Sir  J.  A.  Macdonald,  "the  great 
source  of  weakness  which  has  been  the  cause  of 
the  disruption  of  the  United  States."  The  es- 
sential point  of  this  opinion  still  finds  supporters. 
"In  arranging  this  part  of  the  constitution," 
says  Dr.  Bourinot,  "  its  framers  had  before  them 
the  experience  of  eighty  years'  working  of  the 
federal  system  of  the  United  States,  and  were 
able  to  judge  in  what  essential  and  fundamental 
respects  that  system  appeared  to  be  defective. 
The  doctrine  of  State  sovereignty  had  been 
pressed  to  extreme  lengths  in  the  United  States, 
and  had  formed  one  of  the  most  powerful  argu- 
ments of  the  advocates  of  secession.  This  doc- 
trine had  its  origin  in  the  fact  that  all  powers, 
not  expressly  conferred  upon  the  general  gov- 
ernment, are  reserved  in  the  constitution  to 
the  States.  Now  in  the  federal  constitution  of 
Canada  the  very  reverse  principle  obtains,  with 
the  avowed  object  of  strengthening  the  basis  of 
the  confederation,  and  preventing  conflict  as  far 
as  practicable  between  the  provinces  that  com- 
pose the  Union." ' 

It  is  to  be  observed  that  in  forming  the  tenth 
amendment  of  the  United  States  Constitution, 
the  word  expressly,  which  appears  in  the  second 

*  Bourinot,  "Parliamentary  Procedure  and  Practice,"  8i.  ^ 


DISTRIBUTION    OF    POWER.  93 

article  of  the  Articles  of  Confederation,  was 
omitted,  thus  leaving  the  general  government 
greater  freedom  than  it  would  otherwise  have 
had  in  exercising  implied  powers.  In  Mexico,^ 
Colombia,''  Venezuela,^  and  the  Argentine  Re- 
public,* the  field  for  the  discretionary  exercise  of 
implied  powers  is  more  strictly  limited  than  in 
the  United  States;  for  whatever  power  is  exer- 
cised by  the  federal  organization  in  each  of 
these  cases,  must  be  expressly,  or,  as  the  consti- 
tution of  Colombia  provides,  "expressly,  spe- 
cially, and  clearly"  delegated  to  it.*^  In  each 
of  these  cases,  moreover,  the  powers  of  the  con- 
gress are  enumerated  in  a  series  of  clauses  after 
the  manner  observed  in  the  Constitution  of  the 
United  States;  and  in  some  instances  the  lan- 
guage employed  is  evidently  a  direct  translation 
of  the  words  of  the  model. 

The  scope  of  the  German  imperial  govern- 
ment is  limited  to  the  exercise  of  powers  dele- 
gated to  it,  and  is  sufficiently  indicated  by  an 
enumeration  of  the  subjects  that  have  been 
turned  over  to  its  control.  They  may  be  set 
down  under  the  following  heads  : — 

^  Constitution  of  Mexico,  Art.  117. 
'  Constitution  of  Colombia,  Art.  16. 

*  Constitution  of  Venezuela,  Art.  90. 

*  Constitution  of  the  Argentine  Republic,  Art.  104. 

*  "Todos  los  asuntos  de  gobierno,  cuyo  ejercicio  no  deleguen 
los  estados  espresa,  especial  i  claramente  al  gobierno  jeneral,  son 
de  la  esclusiva  competencia  de  los  mismos  estados."    Art.  16. 


94  GOVERNMENT  OF   SWITZERLAND. 

1.  The  administration  of  the  imperial  finances, 
especially  the  customs  duties,  the  imperial  taxes, 
and  the  emission  of  funded  and  unfunded  paper 
money. 

2.  Foreign  affairs,  together  with  the  protection 
of  German  trade  in  foreign  countries,  and  of 
navigation  on  the  high  seas. 

3.  The  imperial  army  and  navy. 

4.  The  civil  law,  criminal  law,  and  judicial 
procedure;  the  protection  of  copyright;  pro- 
visions for  the  authorization  of  public  docu- 
ments, and  decisions  regarding  denial  of  justice. 

5.  Surveillance  of  foreigners  and  issuing  and 
examining  passports. 

6.  The  press  and  associations. 

7.  The  surveillance  of  the  medical  and  veter- 
inary professions. 

8.  The  principles  governing  the  rights  of 
emigration,  the  poor  laws,  and  laws  referring  to 
residence  and  colonization. 

9.  Legislation  relation  to  trade  and  industry, 
including  insurance  and  banking;  weights,  meas- 
ures, and  coinage,  and  patents  for  inventions. 

10.  Railway  matters,  and  the  construction  of 
means  of  communication  by  land  and  water  for 
the  purposes  of  home  defense  and  of  general 
commerce.  Rafting  and  navigation  on  those 
waters  which  are  common  to  several  States,  and 
the  condition  of  such  waters,  as  likewise  river 
and  other  water  dues;  also  navigation  signals. 


DISTRIBUTION   OF  POWER.  95 

II.  Postal  and  telegraphic  affairs. 

The  competence  of  the  empire  with  respect  to 
these  matters  was  subject  to  certain  limitations: 
"  I.  Hamburg  and  Bremen,  for  the  time  being, 
were  excluded  from  the  tariff  legislation,  as  free 
ports.  2.  In  Bavaria,  Wiirtemberg,  and  Baden, 
the  beer  and  brandy  tax  was  reserved  for  the 
special  legislation  of  these  States;  and  the  same 
was  true  of  the  beer  tax  in  the  province  of  Alsace- 
Lorraine.  3.  Bavaria  and  Wiirtemberg  man- 
age independently  their  postal  and  telegraphic 
affairs  in  accordance  with  certain  principles 
established  by  imperial  legislation.  4.  Both 
States  enjoy,  with  respect  to  military  affairs,  cer- 
tain exceptional  rights.  5.  With  reference  to 
Bavaria,  the  legislation  relating  to  residence  and 
colonization  has  no  application,  as  that  relating 
to  railways  has  only  a  limited  application."  ^ 

The  doctrine  of  the  Swiss  constitution  on  this 
point  is  that  the  cantons  are  sovereign  in  so  far 
as  their  sovereignty  is  not  limited  by  the  federal 
constitution,  and,  as  such,  they  exercise  all  the 
rights  which  are  not  delegated  to  the  federal 
power.*  In  the  Act  of  Mediation  and  in  the 
drafts  of  1832  and  1833,  it  was  required  that  the 
general  government  should  exercise  only  such 
powers  as  were  expressly  delegated,  as  was  the 

'  De  Grais,  "Handbuch  der  Verfassung  und  Verwaltung  in 
Preussen  und  dem  deutschen  Reiche."  I1-13. 
»  Article  3. 


g6  GOVERNMENT  OF   SWITZERLAND. 

case  und^  the  Articles  of  Confederation  in 
America.  But  in  forming  the  constitution  of 
1848,  the  word  " express^ment"  was  omitted,  just 
as  the  corresponding  word  had  been  omitted  in 
forming  the  present  Constitution  of  the  United 
States,  and  with  respect  to  this  point  the  rule  of 
these  two  constitutions  is  the  same.  The  power 
of  the  general  government  of  Switzerland,  like 
that  of  the  United  States,  "extends  not  merely 
to  those  affairs  which  are  turned  over  to  it  by  the 
exact  words  of  the  constitution  itself,  but  also 
to  the  relations  whose  control  by  the  central 
government  appears  as  a  necessity  for  its  per- 
formance of  the  duties  devolving  upon  it."  ^ 
»Blumer,  I,  178. 


CHAPTER    IV. 

THE  LEGISLATURE. 

Of  the  several  governmental  departments  in  a 
federal  state,  the  legislative  is  the  most  con- 
spicuous, although  co-ordinate  with  the  executive 
and  judicial  departments,  and  deriving  its  au- 
thority from  a  source  of  power  common  to  all. 
In  the  federal  state,  "there  are  not  only  organ- 
ized individual  States  but  also  a  completely  or- 
ganized central  and  common  state,"  ^  and  the 
legislature  of  the  central  and  common  state  is 
so  constituted  as  to  take  account  of  the  whole 
body  of  the  people  who  make  up  the  nation, 
and  of  the  individual  States  within  the  larger  or- 

^  Bluntschli,  "Geschichte  des  schw.  Bundesrechtes."  I, 
562.  The  distinctive  characteristics  of  a  federal  government, 
as  indicated  by  Arosemena,  are:  (l)  "That  the  entities  now 
united  may  have  had  an  individual  life  previously,  which  they 
preserve  while  they  delegate  to  a  government  general  and  com- 
mon the  functions  which  are  necessary  to  constitute  nationality; 
(i)  that  the  sectional  government  be  maintained  independent  of 
the  national  and  common  government,  both  in  its  formation 
and  in  its  development."     "Estudios  Constitucionales,"  1,199. 

7  (97) 


98  GOVERNMENT  OF    SWITZERLAND. 

ganism.  Although  the  citizens  of  the  whole 
nation  are  represented  in  the  lower  house,  yet 
they  are  represented  not  as  one  body,  but  as 
several  individual  groups  whose  geographical 
limits  are  the  limits  of  the  several  States.  When 
it  is  provided  that  there  shall  be  one  representa- 
tive for  every  fifty  thousand  inhabitants,  and  for 
each  fraction  of  this  number  not  less  than  twenty 
thousand,  as  in  Colombia,  or  for  each  twenty-five 
thousand  and  fraction  of  at  least  twelve  thou- 
sand, as  in  Venezuela,  or  for  each  twenty  thou- 
sand and  fraction  of  at  least  ten  thousand,  as  in 
the  Argentine  Republic  and  Switzerland,  or  for 
each  forty  thousand  and  each  fraction  of  at  least 
twenty  thousand,  as  in  Mexico,  or  for  each  one 
hundred  thousand  and  fraction  of  at  least  fifty 
thousand,  as  in  the  German  Empire,  the  number 
to  be  divided  by  the  number  required  for  each 
representative  is  the  number  of  the  inhabitants 
of  each  of  the  several  States,  and  the  fraction  is 
the  remainder  after  such  division/     Thus  the 

*  Under  the  Constitution  of  the  United  States  "the  number 
of  Representatives  shall  not  exceed  one  for  every  thirty  thou- 
sand, but  each  State  shall  have  at  least  one  Representative." 
Awaiting  the  first  enumeration  of  the  inhabitants,  which  was 
required  to  be  made  "within  three  years  after  the  first  meeting 
of  the  Congress,"  an  apportionment  of  the  Representatives  to 
be  elected  was  made  among  the  several  States  in  such  a  manner 
that  New  Hampshire  was  entitled  to  choose  three,  Massa- 
chusetts eight,  Rhode  Island  and  Providence  Plantations  one, 
Connecticut  five,  New  York  six,  New  Jersey  four,  Pennsylvania 


THE    LEGISLATURE.  99 

individuality  of  the  States  is  not  set  aside  even 
in  the  organization  of  that  legislative  body 
which  stands  as  the  direct  representative  of  the 
people. 

The  conditions  of  the  suffrage  under  which 
the  members  of  the  lower  house  are  elected  in 
the  several  countries  already  considered,  are  (i) 
determined  in  a  general  way  by  the  federal  con- 
stitution, leaving  details  to  be  fixed  by  law,  as 
in  Switzerland,  Canada,  and  the  German  Em- 
pire, or  (2)  left  by  that  instrument  to  be  deter- 
mined by  federal  legislation,  as  in  Mexico  and 
the  Argentine  Republic,  or  (3)  left  to  the  free 
determination  of  the  several  States,  as  in  Colom- 
bia, Venezuela,  and  the  United  States.  Under 
the  Swiss  constitution,  elections  for  members  of 
the  lower  house  are  direct,  and  are  held  in  fed- 
eral districts  that  are  subdivisions  of  the  cantons. 

eight,  Delaware  one,  Maryland  six,  Virginia  ten.  North  Caro- 
lina five,  South  Carolina  five,  and  Georgia  three  (Art.  I,  Sec.  2). 
The  ratio  of  representation  in  the  House  of  Representatives  has, 
however,  been  changed  with  each  successive  census,  except  the 
second,  as  shown  by  the  following  tabular  account: — 

From  1789  to  1792  according  to  Constitution 30,000 

"     1792  to  1803  based  on  1st  Census  1790 33,000 


1803  to  1812 

2d 

1800... 

..  33,000 

1812  to  1823 

3d        ' 

1810... 

..  35.000 

1823  to  1832 

'           4th      " 

1820  .. 

. .  40,000 

1832  to  1843 

5th      " 

1830... 

..  47.700 

1843  to  1852 

6th      • 

1840... 

. .  70,680 

1852  to  1863 

7th      '• 

1850... 

••  93.423 

1863  to  1872      ' 

8th      ' 

i860... 

..127,381 

1872  to  1882 

9th      ' 

1870. . . 

..131,425 

1882  to 

'           loth     "      1880.. 

-.154,325 

lOO        GOVERNMENT  OF    SWITZERLAND. 

Every  male  Swiss  twenty  years  of  age  who  has 
not  been  deprived  of  the  right  of  active  citizen- 
ship by  the  canton  in  which  he  resides,  has  the 
right  to  vote.  Nevertheless,  the  federal  legis- 
lature may  regulate  in  a  uniform  manner  the 
exercise  of  this  right.  Any  layman  having  the 
right  to  vote  is  eligible  to  membership  in  this 
house. 

In  the  British  North  America  Act  it  was 
provided  that  "until  the  Parliament  of  Canada 
otherwise  provides,  all  laws  in  force  in  the 
several  provinces  at  the  union  relative  to  the 
following  matters  or  any  of  them,  namely, — 
the  qualifications  and  disqualifications  of  per- 
sons to  be  elected  or  to  sit  or  vote  as  members 
of  the  House  of  Assembly  or  Legislative  As- 
sembly in  the  several  provinces,  the  voters 
at  elections  of  such  members,  the  oaths  to  be 
taken  by  voters,  the  returning  officers,  their 
powers  and  duties,  the  proceedings  at  elections, 
the  periods  during  which  elections  may  be 
continued,  the  trial  of  controverted  elections, 
and  proceedings  incident  thereto,  the  vacat- 
ing of  seats  of  members,  and  the  execution  of 
new  writs,  in  case  of  seats  vacated  otherwise 
than  by  dissolution — shall  respectively  apply  to 
elections  of  members  to  serve  in  the  House  of 
Commons  for  the  same  several  provinces."  ^  But 
at  present  the  elections  to  the  House  of  Com- 

*  Article  41. 


THE    LEGiSLAtURE.  tOt 

mons  are  carried  on  under  the  provisions  of 
the  Dominion  Elections  Act,  1874,  as  amended 
by  the  acts  of  1878  and  1882,  and  of  the  Elect- 
oral Franchise  Acts  of  1885  and  1886,^  the  pro- 
vincial regulations  temporarily  adopted  by  the 
British  North  America  Act  being  thus  super- 
seded by  this  subsequent  legislation.  Voters 
under  the  existing  law  must  be  British  sub- 
jects by  birth  or  naturalization,  twenty-one  years 
of  age,  and  have  a  certain  property  qualification. 

According  to  the  constitution  of  the  German 
Empire,  "  the  members  of  the  Reichstag  shall  be 
elected  by  universal  suffrage,  and  by  direct  secret 
ballot,"  "^  and  until  further  legislation  the  elec- 
toral law  for  the  Reichstag  of  the  North  German 
Union,  of  May  31,  1869,  was  accepted  as  the 
electoral  law  of  the  empire.  By  this  law  the 
voter  must  be  at  least  twenty-five  years  old,  in 
the  full  enjoyment  of  civil  rights,  and,  at  the  time 
of  votiflg,  not  in  the  service  of  the  army  or 
navy,' 

In  Mexico,  citizenship  belongs  to  those  who 
are  Mexicans  either  by  birth  or  naturalization, 
and  who  have  completed  their  eighteenth  year 

^  Pope,  "Dominion  Elections  Act,  1874,"  etc.,  Ottawa,  1887. 

*  Translations  of  this  constitution  and  of  this  law  are  printed 
in  papers  relating  to  Foreign  Relations  of  the  United  States, 
transmitted  to  Congress,  with  the  Annual  Message  of  the 
President,  1877,  PP-  210,  212. 

'Article   20. 


102       GOVERNMENT  OF  SWITZERLAND. 

of  age,  if  married,  or  their  twenty-first  year,  if 
unmarried,  and  who  have  an  honorable  means  of 
obtaining  a  livelihood.  Among  the  prerogatives 
of  citizenship  enumerated  by  the  constitution  are 
the  privileges  of  voting  at  the  popular  elections 
and  of  being  voted  for  for  all  elective  offices,  and 
of  being  appointed  to  any  other  employment  or 
commission,  provided  the  qualifications  estab- 
lished by  law  for  such  office,  employment,  or 
commission  have  been  met.'  By  the  vote  of 
Mexican  citizens  who  have  fulfilled  these  condi- 
tions the  Chamber  of  Deputies  is  constituted ; 
and,  in  accordance  with  Article  55,  "the  election 
of  deputies  shall  be  indirect  in  the  first  degree, 
by  a  closed  ballot,  under  conditions  prescribed 
by  the  electoral  law."  The  States  are  divided 
into  electoral  districts  of  forty  thousand  inhab- 
itants each,  the  fraction  of  at  least  twenty  thou- 
sand electing  a  deputy,  like  a  complete  district; 
but  in  case  the  fraction  is  less  than  this  number, 
the  electors  are  added  to  the  district  whose  capi- 

'Art.  34.  Son  ciudadanos  de  la  repi'iblica  todos  los  que, 
teniendo  la  calidad  de  mejicanos,  reunan  ademds  las  siguientes: 

1.  Haber  cumplido  diez  i  ocho  a&os  siendo  casados,  6  vein- 
tiuno  si  nolo  son; 

2.  Tener  un  modo  honesto  de  Tivir. 

Art.  35.  Son  prerogativas  del  ciudadono: 

1.  Volar  en  las  elecciones  populares; 

2.  Poder  ser  votado  para  todos  los  cargos  de  eleccion  popular, 
i  nombrado  para  cualquier  otro  empleo  6  comision,  teniendo 
las  calidades  qu".  la  lei  establezca. 


THE    LEGISLATURE.  I03 

tal  is  nearest.  The  municipalities  of  the  dis- 
tricts are  divided  into  sections  of  five  hundred 
inhabitants,  each  one  of  which  elects  an  elector. 
The  electors  of  the  several  sections  form  an 
electoral  college,  which  meets  in  the  capital  01 
the  respective  district.  This  electoral  body  then 
elects  one  deputy,  votes  for  a  president  of  the 
Republic,  for  the  members  of  the  supreme  court 
and  four  supernumeraries,  and  for  an  attorney- 
general.  The  candidate  for  deputy  who  re- 
ceives an  absolute  majority  of  the  votes  of  the 
college  is  elected;  but  if  no  one  receive  such  a 
majority  on  the  first  ballot,  a  second  ballot  is 
taken  on  the  two  who  have  received  the  relative 
majority. 

While  in  Mexico  the  members  of  the  lower 
house  are  elected  by  an  indirect  vote,  one  mem- 
ber from  each  of  the  electoral  districts  into 
which  the  States  are  divided,  in  the  Argentine 
Republic  they  are  "elected  directly  by  the  peo- 
ple of  the  provinces  and  of  the  capital,  which 
for  this  purpose  are  considered  as  electoral  dis- 
tricts of  a  single  state,  and  by  a  simple  plurality 
of  votes."  The  representative,  however,  must  be 
twenty- five  years  old,  have  been  four  years  a 
citizen,  and  have  been  born  in  the  province  which 
elects  him,  or  have  resided  in  it  for  two  years 
immediately  preceding  the  election.  The  con- 
stitutions of  Colombia  and  Venezuela  assert  in 


104        GOVERNMENT  OF   SWITZERLAND. 

almost  the  same  words  that  "it  belongs  to  the 
States  to  determine  the  manner  of  making  the 
appointment  of  senators  and  representatives," 
thus  leaving  the  matter  wholly  in  the  hands  of 
the  law-making  power  of  the  several  States.^ 
Under  the  Constitution  of  the  United  States,  the 
power  of  the  individual  State  in  this  regard  is 
somewhat  more  restricted,  inasmuch  as  the  State 
is  debarred  from  imposing  upon  voters  for  con- 
gressmen any  conditions  or  qualifications  dif- 
ferent from  those  "  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legislature."  ^ 
It  is  .still  further  restricted  by  the  fifteenth 
amendment  to  the  Constitution,  which  provides 
that  "the  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of 
race,  color,  or  previous  condition  of  servitude." 
But,  aside  from  these  restrictions,  the  power  of 
the  State  is  complete. 

In  the  constitution  of  the  upper  house,  or 
senate,  of  a  federal  state,  not  only  are  the  States 
as  political  societies  recognized,  .but  generally 
also  the  organism  itself  in  each.     It  is  a  rule 

'Article  40  of  the  Ccngtitation  of  Colombia  is  as  follows: 
"Corresponde  A  los  estados  determinar  la  manera  de  hacer  el 
nombramiento  de  sus  senadores  i  representantes;"  and  Article 
19  of  the  Constitution  of  Venezuela:  "Los  estados  determinardn 
la  manera  de  hacer  el  nombramiento  de  senadores  i  diputados." 

*  Constitution  of  the  United  States,  Art.  i,  .Sec.  2. 


THE    LEGISLATURE.  I05 

moreover,  but  a  rule  with  certain  exceptions, 
that  the  members  of  the  upper  house  receive 
their  appointments  from  the  governments  of  the 
subordinate  States,  the  manner  of  appointment 
often  being  left  to  the  will  of  the  State.  In 
Switzerland,  the  manner  of  appointment,  the 
term  of  service,  and  the  compensation  are  left  to 
the  determination  of  the  canton.  If  in  the 
purely  democratic  cantons  the  members  of  the 
Council  of  States,  or  Senate,  are  elected  by  the 
popular  assemby  of  the  canton,  it  may  still  be 
regarded  as  an  appointment  by  the  government, 
since  the  popular  assembly  holds  essentially  the 
same  position  in  the  governmental  organization 
of  the  canton  that  the  legislature  performing  the 
same  oflfice  holds  in  the  governmental  organi- 
zation of  a  State  in  the  American  Union.  In  the 
other  cantons,  the  senators  are  elected  by  the 
Great  Council.  The  Argentine  Republic  follows 
a  rule  in  most  respects  like  that  observed  in  the 
United  States.  "The  Senate  is  composed  of 
two  senators  from  each  province,  elected  by  their 
legislatures  by  a  plurality  of  votes;  and  two  from 
the  capital,  elected  according  to  the  form  pre- 
scribed for  the  election  of  the  president  of  the 
nation."  ^  The  Mexican  constitution  also  pro- 
vides not  only  for  two  senators  from  each  of  the 
States,  but  at  the  same  time  for  two  from  the 
*  The  Ai^entine  Constitution,  Art.  46. 


I06        GOVERNMENT  OF    SWITZERLAND. 

federal  district;  and  with  reference  to  their 
election,  it  provides  that  "  the  election  of  sena- 
tors shall  be  indirect  in  the  first  degree.  The 
legislature  of  each  State  shall  declare  elected  the 
person  who  shall  have  obtained  the  absolute 
majority  of  all  the  votes  cast,"  and  the  electoral 
college  which  votes  for  the  senators  is  the  body 
which  votes  for  the  deputies,  the  president  of  the 
republic,  and  the  members  of  the  supreme  court. 

In  Colombia  and  Venezuela,  the  constitution 
simply  leaves  the  manner  of  electing  or  appoint- 
ing the  senators  to  the  determination  of  the 
States.  The  members  of  the  Federal  Council 
of  the  German  Empire,  if  we  may  view  this  body 
as  the  upper  house  of  a  federal  state,  are  ap- 
pointed by  the  governments  of  the  subordinate 
States;  they,  moreover,  serve  these  governments 
in  the  Federal  Council,  in  the  capacity  of  am- 
bassadors rather  than  as  representatives,  and 
vote  according  to  instructions.  But  in  Canada, 
under  the  British  North  America  Act,  the  sena- 
tors are  appointed  by  the  governor-general  in 
the  queen's  name,  and  hold  their  positions  for 
life.  The  appointee  must,  however,  be  able  to 
comply  with  the  following  qualifications: — 

"  I.  He  shall  be  of  the  full  age  of  thirty  years; 

"2.  He  shall  be  either  a  natural-born  subject 
of  the  queen,  or  a  subject  of  the  queen  natural- 
ized by  an  act  of  the  parliament  of  Great  Britain, 


THE   LEGISLATURE.  10/ 

or  of  the  parliament  of  the  United  Kingdom  of 
Great  Brifain  and  Ireland,  or  of  the  legislature 
of  one  of  the  provinces  of  Upper  Canada,  Lower 
Canada,  Canada,  Nova  Scotia,  or  New  Bruns- 
wick, before  the  union,  or  of  the  parliament  of 
Canada  after  the  union ; 

"  3.  He  shall  be  legally  or  equitably  seized  as 
of  freehold  for  his  own  use  and  benefit  of  lands  or 
tenements  held  in  free  and  common  socage,  or 
seized  or  possessed  for  his  own  use  and  benefit  of 
lands  or  tenements  held  in  franc-alleu  or  in  ro- 
ture.within  the  province  for  which  he  is  appointed, 
of  the  value  of  four  thousand  dollars,  over  and 
above  all  rents,  dues,  debts,  charges,  mortgages, 
and  incumbances  due  or  payable  out  of,  or 
charged  on  or  affecting  the  same; 

"4.  His  real  and  personal  property  shall  be 
together  worth  four  thousand  dollars  over  and 
above  his  debts  and  liabilities; 

"5.  He  shall  be  resident  in  the  province 
for  which  he  is  appointed; 

*'6.  In  the  case  of  Quebec,  he  shall  have  his 
real  property  qualification  in  the  electoral  divis- 
ion for  which  he  is  appointed,  or  shall  be  resi- 
dent in  that  division." ' 

With  these  qualifications  for  senatorship  in 
Canada  may  be  compared  the  requirements  set 
by  the  Constitution  of  the  United  States,  in  which 

*The  British  North  America  Act,  1867,  Art.  23. 


I08        GOVERNMENT  OF    SWITZERLAND. 

it  is  provided  that  "  no  person  shall  be  a  sen- 
ator who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of 
the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which 
he  shall  be  chosen."'  The  constitutions  of 
Colombia  and  the  empire  make  no  provisions  as 
to  the  age  of  senators  and  members  of  the  Fed- 
eral Council.  But  in  the  other  states  under 
consideration,  where  any  voter  may  be  a  senator, 
the  age  of  thirty  is  a  common  requirement.  Be- 
sides the  requirement  of  age,  the  other  qualifica- 
tions for  the  position  of  senator  in  Mexico  are 
the  same  as  those  specified  for  a  member  of  the 
lower  house  of  the  federal  congress.  In  the 
Argentine  Republic,  he  must,  moreover,  have 
been  six  years  a  citizen  of  the  nation,  be  in  re- 
ceipt of  an  annual  income  of  two  thousand  dol- 
lars, and  have  been  born  in  the  province  which 
elects  him,  or  have  resided  in  it  for  two  years 
immediately  preceding  the  election.  In  Vene- 
zuela, however,  the  only  requisite,  aside  from 
that  of  age,  is  that  he  be  a  citizen  of  Venezuela 
by  birth. 

In  the  senates  of  the  federal  republics,  the 
political  equality  of  the  States  is  recognized, 
each  State  sending  two  senators,  except  Colom- 
bia,  where   each    State   is   represented    in   the 

^Constitution  of  the  United  States,  Art.  i,  Sec.  3. 


THE    LEGISLATURE.  IO9 

senate  by  three  members.  In  Switzerland  each 
half-canton  elects  one  senator.  Each  of  these 
nations  in  its  struggle  for  an  independent  exist- 
ence has  associated  the  notion  of  equality  with 
its  ideal  of  liberty.  But  Canada  and  the  Ger- 
man Empire  have  never  known  such  a  struggle, 
and  have  adhered  to  their  monarchial  prepos- 
sessions in  favor  of  inequality.  In  constituting 
their  upper  houses,  moreover,  the  political  ine- 
quality of  the  States  has  been  maintained.  In 
Canada  the  number  of  senators  is  seventy-eight. 
Of  these,  twenty-four  are  for  Ontario,  twenty- 
four  for  Quebec,  ten  for  Npva  Scotia,  ten  for 
New  Brunswick,  three  for  Manitoba,  and  three 
for  British  Columbia.  "In  case  of  the  admission 
of  Newfoundland,  the  normal  number  of  sena- 
tors shall  be  seventy-six,  and  their  maximum 
number  shall  be  eighty-two."'  The  Federal 
Council  of  the  German  Empire  comprises  fifty- 
eight  members,  of  whom  Prussia  sends  seven- 
teen, Bavaria  six,  Saxony  and  Wiirtemberg  four 
each,  Baden  and  Hesse  three  each,  Mecklenburg- 
Schwerin  and  Brunswick  two  each,  and  each  of 
the  other  States  one.  Although  Prussia  has 
seventeen  members  to  Bavaria's  six,  yet  her 
superiority  here  is  not  in  proportion  to  her 
superiority  in  population ;  for  while  she  has  less 
than  three  times  as  many  members  as  Bavaria 

^The  British  North  America  Act,  1867,  Art.  147. 


no        GOVERNMENT  OF    SWITZERLAND. 

in  the  Federal  Council,  she  has  more  than  five 
times  as  many  inhabitants.  Prussia  has,  more- 
over, less  than  five  times  as  many  members  as 
Saxony,  but  more  than  nine  times  as  many  in- 
habitants. In  a  word,  although  the  smaller 
States  have  not  the  same  number  of  members 
in  the  Federal  Council  as  the  larger,  yet  they 
have  a  larger  membership  in  proportion  to  their 
population.  The  terms  for  which  the  members 
of  the  two  houses  are  elected  in  the  several  fed- 
erations vary  from  two  to  nine  years,  of  course 
not  taking  into  account  the  life  service  of  the 
appointed  Canadian  senators.  In  the  Argentine 
Republic  and  the  United  States,  the  senators  are 
elected  for  a  very  much  longer  period  than  the 
members  of  the  lower  house.  In  the  former  state, 
the  senatorial  term  is  nine  years,  while  the  repre- 
sentatives are  elected  for  a  term  of  four  years, 
which  may  be  compared  with  the  respective 
terms  of  six  and  two  years  in  the  United  States. 
But  in  Mexico,  Switzerland,  and  Venezuela,  the 
senators  and  representatives  hold  office  for  equal 
terms:  two  years  in  Mexico  and  Venezuela,  and 
three  years  in  Switzerland.  Three  years  is  also 
the  term  of  election  for  the  Reichstag,  but  the 
members  of  the  Federal  Council  serve  according 
to  the  pleasure  of  the  governments  which  they 
represent.  The  Reichstag,  however,  like  the 
Canadian  House  of  Commons,  which  is  elected 


THE    LEGISLATURE.  Ill 

for  a  period  of  five  years,  may  be  dissolved  be- 
fore the  expiration  of  the  term  set  by  law  for  its 
duration. 

In  democratic  Switzerland,  the  constitution 
places  certain  restrictions  on  the  election  of  of- 
ficers of  the  legislative  assemblies,  with  the  view 
of  distributing  the  honor  and  power  attaching  to 
the  positions.  The  National  Council,  or  lower 
house,  elects  from  its  members  "  for  each  regular 
or  extra  session  a  president  and  a  vice-president. 
The  member  who  has  been  president  during  one 
regular  session  cannot,  at  the  following  regular 
session,  occupy  this  position  or  that  of  the  vice- 
president.  Nor  can  the  same  person  be  vice- 
president  during  two  consecutive  regular  ses- 
sions."^ In  the  Swiss  Senate,  the  president  and 
vice-president  are  elected  under  the  same  con- 
ditions as  the  officers  of  the  lower  house,  but 
•'  neither  the  president  nor  the  vice-president  can 
be  elected  from  the  senators  of  the  canton  from 
which  the  president  was  chosen  for  the  regular 
session  immediately  preceding.  Nor  can  vice- 
presidents  for  two  consecutive  regular  sessions 
be  chosen  from  the  senators  of  the  same  canton."^ 
In  the  elections  of  both  houses  the  president 
votes  as  the  other  members,  and,  moreover,  de- 
cides in  case  of  a  tic.  But  in  the  less  democratic 
United    States,  the    House  of  Representatives 

*  Federal  Constitution  of  Switzerland,  Art.  78. 
""Ibid.,  Art.  82. 


112        GOVERNMENT  OF    SWITZERLAND. 

elects  its  speaker  without  any  of  those  restric- 
tions which  are  imposed  in  Switzerland  ;  so  that 
whatever  power  may  be  exercised  through  the 
speaker  may  be  wielded  by  one  State  for  a  long 
series  of  years.  But  the  Senate  has  no  voice  in 
the  choice  of  its  speaker,  inasmuch  as  the  vice- 
president  of  the  United  States  is  the  president 
of  the  Senate,  He  has  no  vote,  however,  except 
in  case  of  a  tie. 

In  the  organization  of  its  legislative  assemblies 
Canada  follows  more  or  less  closely  the  practice 
of  the  English  Parliament.  "  The  speaker  of  the 
Senate  is  appointed  by  a  commission  under  the 
great  seal."  ^  In  the  words  of  the  British  North 
America  Act,  "the  governor-general  may  from 
time  to  time,  by  instrument  under  the  great  seal 
of  Canada,  appoint  a  senator  to  be  speaker  of 
the  Senate,  and  may  remove  him  and  appoint 
another  in  his  stead.'"*  The  speaker  of  the  Ca- 
nadian House  of  Commons  is  elected  by  the 
house  with  ceremonies  similar  to  those  which 
accompany  the  election  of  a  speaker  of  the  Com- 
mons of  England.' 

With  respect  to  the  payment  of  the  members 
of  federal  legislatures,  a  varied  practice  prevails. 
In  the  German  Empire  there  is  a  constitutional 

'Bourinot,  "  Parliamentary  Procedure  and  Practice,"  157. 

*  Article  34. 

^Bourinot,  "Parliamentary  Procedure  and  Practice,"  224- 
230. 


THE    LEGISLATURE.  II3 

provision  which  affirms  that  "  the  members  of 
the  Reichstag  shall  not  be  allowed  to  draw  any 
salary  or  be  compensated  as  such.'"  The  mem- 
bers of  the  Bundesrath,  however,  in  this  regard 
are  subject  to  such  conditions  as  the  individual 
States  may  see  fit  to  impose.  But  in  Switzer- 
land, the  members  of  the  lower  house  are  paid 
out  of  the  federal  treasury,  while  those  of  the 
Senate,  or  Council  of  States,  are  paid  by  the 
cantons.  In  the  majority  of  cases,  as  in  the 
United  States,  Canada,  and  the  South  American 
federations,  both  houses  are  paid  from  the  funds 
of  the  general  government.  The  usage  in 
Canada  is  a  wide  departure  from  the  practice  of 
England,  where  the  members  of  neither  house 
receive  pay.  In  the  Dominion,  "  the  members 
of  both  houses  receive  a  sessional  indemnity, 
besides  a  traveling  allowance,  and  forfeit  a  cer- 
tain sum  for  every  day  of  absence  from  their 
duties  in  the  house.'"* 

As  already  indicated,  the  federal  government 
of  Switzerland  deals  only  with  such  subjects  as 
are  placed  under  its  control  by  the  constitution, 
and  of  these  all  are  considered  by  the  two  houses 
of  the  legislature,  except  those  which  have  been 
relegated  to  some  other  federal  authority.  A  list 
of  the  subjects  which  fall  within  the  competence 

*  Article  32. 

*Bourinot,  "  Parliamentary  Procedure  and  Practice,"  146. 

8 


114        GOVERNMENT  OF    SWITZERLAND. 

of  the  federal  legislature  is  given  in  the  eighty- 
fifth  article  of  the  constitution.  It  embraces 
the  following: — 

1.  Laws  on  the  organization  and  mode  of 
electing  the  federal  authorities; 

2.  Laws  and  resolutions  on  matters  which  the 
constitution  places  in  federal  hands; 

3.  The  salary  and  indemnity  of  the  members 
of  the  federal  government;  the  creation  of  per- 
manent offices,  and  the  determination  of  the  sal- 
aries attaching  to  them; 

4.  The  election  of  the  Federal  Council,  the 
Federal  Tribunal,  and  the  Chancellor,  also  the 
commander-in-chief  of  the  federal  army.  Fed- 
eral legislation  may  confer  upon  the  Federal 
Assembly  the  right  to  make  and  confirm  other 
elections; 

5.  Alliances  and  treaties  with  foreign  states 
as  well  as  the  approval  of  the  treaties  of  the 
cantons  among  themselves  or  with  foreign 
states;  yet  the  treaties  of  the  cantons  are  not 
brought  before  the  Federal  Assembly  unless 
complaints  are  raised  by  the  Federal  Council  or 
another  canton; 

6.  Measures  to  provide  againt  danger  from 
without,  as  also  to  maintain  the  independence 
and  neutrality  of  Switzerland;  making  war 
and  peace; 

7.  The  guarantee  of  the  constitutions  and  the 


THE    LEGISLATURE.  II5 

territory  of  the  cantons ;  intervention  in  conse- 
quence of  this  guarantee  ;  measures  for  the  inter- 
nal security  of  Switzerland,  for  the  maintenance 
of  tranquillity  and  order;  amnesty  and  the  right 
of  pardon; 

8.  Measures  to  insure  respect  for  the  federal 
constitution,  to  make  effective  the  guarantee  of 
the  cantonal  constitutions,  as  well  as  those  meas- 
ures which  have  for  their  end  the  fulfillment  of 
federal  duties; 

9.  The  control  of  the  federal  army; 

10.  The  determination  of  the  annual  budget. 
The  approval  of  the  public  expenditures,  and 
resolutions  authorizing  loans; 

1 1.  The  supreme  control  of  the  administra- 
tion and  the  federal  courts ; 

12.  Charges  against  the  decisions  of  the  fed- 
eral council  concerning  administrative  contests 
(Art.  113); 

13.  Questions  of  jurisdiction  between  federal 
authorities; 

14.  The  revision  of  the  federal  constitution. 

This  list  is  not  to  be  taken  as  a  strictly  ex- 
haustive indication  of  the  powers  of  the  Federal 
Assembly,  In  this  respect  it  may  be  likened 
to  the  eighth  section  of  the  first  article  of  the 
Constitution  of  the  United  States.  It  appears, 
however,  from  this  enumeration  that  the  Federal 
Assembly  exercises  not  only  legislative  power, 


Il6        GOVERNMENT  OF   SWITZERLAND. 

but  also  supervisory  (i  I ),  executive  (8,  9,  10), 
and  judicial  (12,  I3_)  power;  but  the  judicial 
functions  of  the  Federal  Assembly  at  present 
are  less  extensive  than  those  enjoyed  by  this 
body  under  the  constitution  of  1848. 

According  to  the  constitution,  the  two  houses 
of  the  legislature  are  required  to  assemble  in 
ordinary  session  once  each  year,  on  a  day  fixed 
by  law.  Still  it  has  become  customary  for  them 
to  assemble  regularly  for  longer  meetings  in 
June  and  December,  and  besides  to  hold  shorter 
sessions  whenever  the  business  may  require  it.' 
The  extra  sessions  are  held  at  the  call  of  the 
Federal  Council,  or  on  the  demand  of  a  fourth 
of  the  members  of  the  lower  house,  or  on  that 
of  five  cantons.*  Ordinarily  each  house  sits 
separately,  but  for  the  purpose  of  electing  the 
officers  mentioned  in  Art.  85,  Sec.  4,  and  for 
exercising  the  right  of  pardon,  or  deciding  in 
cases  of  disputed  jurisdiction,  the  two  houses 
assemble  in  joint  session,  the  president  of  the 
lower  house  presiding,  and  decisions  are  deter- 
mined by  the  majority  of  the  members  of  the 
two  houses  voting.  The  initiative  belongs  to 
each  house,  to  each  individual  member,  and  also 
to  the  cantons.  The  meetings  are  generally 
public.  The  members  of  both  houses  vote 
without  instructions,  and  enjoy  the  usual  privi- 

1  Von  Orelli,  32. 
'Article  86. 


THE  LEGISLATURE.  II7 

leges  and  immunities  of  members  of  representa- 
tive bodies.  The  quorum  in  each  house  con- 
sists of  a  majority  of  all  the  members,  and 
measures  are  adopted  by  an  absolute  majority 
of  those  voting.  In  passing  laws,  decrees,  and 
resolutions,  each  house  has  a  veto  on  the  action 
of  the  other;  in  other  words,  in  order  to  reach 
a  positive  decision  the  two  bodies  must  be  in 
accord.  But  such  agreement  is  not  adequate  in 
all  cases  to  the  establishment  of  a  law.  When- 
ever it  is  demanded  by  30,000  active  citizens,  or 
by  eight  cantons,  the  federal  law  passed  by  the 
two  houses  must  be  submitted  to  the  people  to 
be  adopted  or  rejected  by  them.  This  is  also 
the  case  with  federal  resolutions  which  have  a 
general  bearing,  and  which  are  not  regarded  as 
urgent.'  It  is  left  to  federal  legislation  to  de- 
termine what  is  necessary  with  respect  to  the 
form  and  the  times  for  the  popular  voting.^ 

In  June,  1874,  ^  ^^^  days  after  the  adoption 
of  the  amended  constitution,  a  federal  law  was 
passed,  making  provision  for  carrying  out  the 
principle  of  referendum,  which  had  been  estab- 
lished by  Art.  89. 

According  to  this  provision,  laws  and  resolu- 
tions, on  which  a  popular  vote  might  be  de- 
manded, were  to  be  published  immediately  after 
their  passage,  and  copies  were  to  be  sent  to  the 

1  Article  89. 
*  Article  90. 


Il8        GOVERNMENT  OF    SWITZERLAND. 

governments  of  the  several  cantons.  Through 
the  cantons  they  were  then  to  be  brought  to  the 
attention  of  the  communes.  It  was,  moreover, 
required  that  the  demands  for  a  popular  vote 
should  be  presented  to  the  Federal  Council  in 
writing  within  ninety  days  after  the  passage  of 
the  law  or  resolution  in  question.  Every  effect- 
ive demand  had  to  be  signed  by  the  citizen 
making  it,  signing  by  proxy  being  by  law  for- 
bidden. If  at  the  expiration  of  the  ninety  days 
indicated,  the  demand  was  found  to  have  been 
made  in  the  proper  manner  by  30,000  voters, 
the  Federal  Council  fixed  a  day  for  taking  the 
popular  vote.  The  voting  day  was  required  to 
be  at  least  four  weeks  later  than  the  day  on 
which  the  Federal  Council  took  action  deter- 
mining it.  The  arrangements  for  taking  the 
vote  were  then  made  by  the  cantons.  The  re- 
ports of  the  results  of  the  voting,  as  made  for 
each  commune,  embraced  the  number  of  those 
entitled  to  vote,  the  number  of  those  who  had 
voted,  the  number  accepting,  and.  the  number 
rejecting,  the  measure.  These  original  certifi- 
cates were  sent  to  the  Federal  Council.  If  there 
were  neither  30,000  voters  nor  eight  cantons 
demanding  the  referendum,  or  if,  in  case  the 
popular  vote  was  taken  and  the  proposition  of 
the  legislature  was  accepted,  the  law  was  then 
published  in  the  official  list  and  its  execution 
ordered. 


THE  LEGISLATURE.  II9 

During  the  first  twelve  years  after  the  passage 
of  this  law,  between  1874  and  1886,  the  federal 
legislature  passed  113  laws  and  resolutions  which 
were  capable  of  being  submitted  to  the  refer- 
endum. Of  these  only  19  were  subjected  to  the 
popular  vote,  and  of  these  last  13  were  rejected 
and  6  adopted. 

The  strong  opposing  views,  which  are  held  in 
Switzerland  regarding  the  expediency  of  the 
referendum,  indicate  that  this  is  one  of  the  feat- 
ures of  the  government  which  is  open  to  fut- 
ure discussion.  On  the  one  hand,  it  may  be 
claimed  that  the  representative  system  is  of  su- 
preme importance,  and  that  the  referendum  is 
inconsistent  with  it,  and,  if  carried  out,  will  lead 
to  its  subversion.  On  the  other  hand,  it  is  as- 
serted that  "the  combination  of  representative 
institutions,  with  the  direct  exercise  of  popular 
sovereignty,  is  well  calculated  to  promote  the 
welfare  of  a  people  occupying  the  peculiar  po- 
sition in  which  the  Swiss  are  placed.  The  dis- 
cipline of  self-government  in  the  commune,  and 
the  training  afforded  by  an  effective  system  of 
education,  have  qualified  them  for  the  practice 
of  direct  democracy  in  the  cantons  and  in  the 
Confederation.  The  chief  drawback  of  the  ref- 
erendum consists  in  the  possible  diminution  of 
the  feeling  of  responsibility  in  the  members  of 
the  representative  assemblies.     That  disadvan- 


120        GOVERNMENT  OF    SWITZERLAND. 

tapje,  however,  is  amply  outweighed  by  the  edu- 
cative effect  which  the  system  exercises  on  the 
great  bulk  of  the  citizens,  by  disposing  them  to 
recognize  the  necessity  for  the  careful  discharge 
of  the  duties  involved  in  their  rights,  and  by 
inspiring  them  with  constant  solicitude  for  the 
well-being  of  the  state  to  which  they  belong."  * 

*  Westminster  Review,  Feb.,  l888,  p.  213. 


CHAPTER    V. 
THE  EXECUTIVE; 

The  development  of  a  federal  government  from 
a  loose  confederacy  is  attended  by  the  growth  of 
the  executive  as  a  separate  department  of  the 
state.  In  the  United  States  before  1787,  and  in 
Switzerland  before  1848,  the  legislative  and  the 
executive  powers  were  vested  in  the  same  body. 
Under  the  organization  of  existing  federal  states 
the  executive  exists  as  a  separate  department  of 
government,  and  in  the  federal  republics  as  a 
department  separate  but  co-ordinate  with  the 
judicial  and  legislative  departments.  Although 
the  existing  federal  governments  are  brought 
together  into  a  single  class,  they  are,  nevertheless, 
marked  by  wide  variations  with  respect  to  the 
details  of  organization.  These  variations  are  as 
conspicuous,  perhaps,  with  reference  to  the 
executive  department  as  any  other.  In  Canada 
and  the  German  Empire,  the  head  of  the  execu- 
tive department  is  constituted  by  the  right  of 
inheritance;  while  in  the  United  States,  Mexico, 

(121) 


122        GOVERNMENT  OF    SWITZERLAND. 

Colombia,  Venezuela,  the  Argentine  Republic, 
and  Switzerland,  he  holds  his  position  by  virtue 
of  either  a  direct  or  an  indirect  election. 

"The  executive  government  and  authority  of 
and  over  Canada"  is  vested  in  the  queen,  and 
is  consequently  subjected  to  the  law  of  succession 
prevailing  in  England.  The  direct  agent  of  the 
queen  in  exercising  this  government  and  au- 
thority in  the  dominion  is  a  governor-general, 
appointed  by  letters-patent  under  the  great 
seal.  "His  jurisdiction  and  powers  are  defined 
by  the  terms  of  his  commission,  and  by  the  royal 
instructions  which  accompany  the  same.  He 
holds  office  during  the  pleasure  of  the  Crown, 
but  he  may  exercise  his  functions  for  at  least  six 
years  from  the  time  he  has  entered  on  his  duties. 
In  all  his  communications  with  the  imperial  gov- 
ernment, of  which  he  is  an  officer,  he  addresses 
the  secretary  of  state  for  the  colonies,  the  con- 
stitutional avenue  through  which  he  must  ap- 
proach the  sovereign."  ^  On  entering  upon  his 
duties,  he  takes  "the  necessary  oaths  of  alle- 
giance and  office  before  the  chief  justice,  or  any 
other  judge  of  the  supreme  court  of  the  domin- 
ion," and  causes  his  commission  to  be  formally 
read.*  He  "  is  authorized,  among  other  things, 
to  exefcise  all  powers  lawfully  belonging  to  the 
queen.with  respect  to  the  summoning,proroguing, 

*  Bourinot,  "Parliamentary  Procedure  and  Practice,"  49. 
*Jbid.,  50. 


THE  EXECUTIVE.  1 23 

or  dissolving  parliament;  to  administer  the  oaths 
of  allegiance  and  office;  to  transmit  to  the  im- 
perial government  copies  of  all  laws  assented  to 
by  him  or  reserved  for  the  signification  of  the 
royal  assent;  to  administer  the  prerogative  of 
pardon;  to  appoint  all  ministers  of  state,  judges, 
and  other  public  officers,  and  to  remove  or  sus- 
pend them  for  sufficient  cause.  He  may  also 
appoint  a  deputy  or  deputies  to  exercise  certain 
of  his  powers  and  functions.  He  may  not  leave 
the  dominion  upon  any  pretense  whatsoever 
without  having  first  obtained  permission  to  do 
so  through  one  of  the  principal  secretaries  of 
state.  In  case  of  the  death,  incapacity,  removal 
or  absence  from  Canada  of  the  governor-general, 
his  powers  are  vested  in  a  lieutenant-governor 
or  administrator  appointed  by  the  queen,  under 
the  royal  sign-manual;  or,  if  no  such  appoint- 
ment has  been  made,  in  the  senior  officer  in 
command  of  the  imperial  troops  in  the  domin- 
ion." ' 

The  president  of  the  German  federation  is  the 
King  of  Prussia,  who  bears  the  title  of  German 
Emperor.  "  He  shall  represent  the  empire 
among  nations,  declare  war,  and  conclude  peace 
in  the  name  of  the  same,  enter  into  alliances  and 
other  conventions  with  foreign  countries,  accredit 
ambassadors  and  receive  them.     For  a  declara- 

^  Bourinot,  51 ;  British  North  America  Act,  Articles  9-16. 


124        GOVERNMENT  OF    SWITZERLAND. 

tion  of  war  fti  the  name  of  the  empire  the  con- 
sent of  the  Bundesrath  shall  be  required,  except 
in  case  of  an  attack  upon  the  territory  of  the 
confederation  or  its  coasts."  Treaties  with 
foreign  powers,  made  by  the  emperor  and  re- 
lating to  matters  under  the  supervision  of  the 
imperial  legislature,  require  the  ratification  of 
the  Bundesrath  and  the  approval  of  the  Reichs- 
tag to  render  them  valid. ^  Such  authority  as 
is  here  vested  in  the  emperor  for  determining 
foreign  relations,  belongs,  in  the  government  of 
Canada,  to  the  British  Crown.  But,  like  the 
governor-general,  the  emperor  has  the  power  of 
summoning,  proroguing,  or  dissolving  the  diet," 
To  him  belongs  "  the  right  to  prepare  and  pub- 
lish the  laws  of  the  empire  and  the  surveillance 
of  their  execution.'"  He  shall  also  "appoint 
the  officers  of  the  empire,  require  them  to  take 
the  oath  of  allegiance,  and  dismiss  them  when 
necessary."  *  Moreover,  if  any  State  of  the 
empire  shall  not  fulfill  its  constitutional  duties 
to  the  empire,  proceedings  may  be  instituted 
against  it  by  execution,  "and  this  execution  shall 
be  ordered  by  the  Bundesrath,  and  enforced  by 
the  emperor."^ 

^Constitution  of  the  German  Empire,  Art.  ii. 
"^Ibid.,  Art.  12. 
^Ibid.,  Art.  17. 

*  Ibid.,  Art.  18. 

*  Ibid.,  Art.  19. 


THE  EXECUTIVE.  I25 

Although  the  president  in  each  of  the  Ameri- 
can federal  republics  is  elected,  yet  no  two  of 
these  states  have  the  same  method  of  election. 
The  method  established  by  the  Constitution  of 
the  United  States  is  set  forth  in  the  second 
clause  of  Article  2,  and  in  the  Twelfth  Amend- 
ment: "Each  State  shall  appoint,  in  such  man- 
ner as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number 
of  senators  and  representatives  to  which  the 
State  may  be  entitled  in  the  Congress. "  The 
manner  of  appointment  was  not  determined  by 
the  constitution,  but  left  to  the  legislature  of 
each  State.  At  first  they  were  "  chosen  in  four 
different  modes,  namely,  by  joint  ballot  of  the 
State  legislatures,  by  a  concurrent  vote  of  the 
two  branches  of  the  State  legislature,  by  the  peo- 
ple of  the  State  voting  by  general  ticket,  and 
by  the  people  voting  in  districts."^  The  existing 
practice  is  a  combination  of  the  last  two  modes. 
"The  electors  shall  meet  in  their  respective 
States,  and  vote  by  ballot  for  president  and 
vice-president,  one  of  whom,  at  least,  shall  not 
be  an  inhabitant  of  the  same  State  with  them- 
selves ;  they  shall  name  in  their  ballots  the  per- 
son voted  for  as  president,  and  in  distinct  bal- 
lots the  person  voted  for  as  vice-president." 
The  ballots  shall  be  counted  by  the  president  of 

'Lanman's  "Directory  of  Congress,"  427. 


126        GOVERNMENT  OF   SWITZERLAND. 

the  Senate  in  the  presence  of  the  Senate  and 
House  of  Representatives.  "  The  person  having 
the  greatest  number  of  votes  for  president 
shall  be  the  president,  if  such  number  be  a  ma- 
jority of  the  whole  number  of  electors  ap- 
pointed ;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  num- 
bers, not  exceeding  three,  on  the  list  of  those 
voted  for  as  president,  the  House  of  Represent- 
atives shall  choose  immediately  by  ballot,  the 
president.  But  in  choosing  the  president  the 
votes  shall  be  taken  by  States,  the  representa- 
tion from  each  State  having  one  vote;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  States,  and  a 
majority  of  all  the  States  shall  be  necessary  to 
a  choice.  And  if  the  House  of  Representatives 
shall  not  choose  a  president  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the 
vice-president  shall  act  as  president,  as  in  case 
of  the  death  or  other  constitutional  disability  of 
the  president.  The  person  having  the  greatest 
number  of  votes  as  vice-president  shall  be  the 
vice-president,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed ;  and  if 
no  person  have  a  majority,  then,  from  the  two 
highest  numbers  on  the  list,  the  Senate  shall 
choose   the   vice-president;  a    quorum    for  the 


THE  EXECUTIVE.  I27 

purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice." 

"The  Congress  may  determine  the  time  of 
choosing  the  electors,  and  the  day  on  which 
they  shall  give  their  votes,  which  day  shall  be 
the  same  throughout  the  United  States." 

By  the  framers  of  this  law  it  was  intended 
that  the  electors  should  freely  choose  and  ap- 
point the  presidents,  but  the  practice  has  de- 
parted so  widely  from  the  original  intention 
that  the  electors  are  now  only  a  definite  num- 
ber of  votes  determined  for  one  or  the  other 
candidate  by  the  suffrages  of  the  people.  The 
result  of  the  existing  method  is  unlike  that  of  a 
direct  vote,  inasmuch  as  by  preserving  the  indi- 
viduality of  certain  districts  and  groups  of  dis- 
tricts, it  becomes  possible  for  a  minority  of  the 
actual  voters  to  elect  the  president.^ 

In  Mexico,  to  use  the  language  of  the  consti- 
tution, "the  election  of  president  shall  be  indi- 
rect in  the  first  degree  and  by  secret  ballot,  un- 
der conditions  fixed  by  the  electoral  law.""^  The 
electoral  law  providing  for  the  election  of  presi- 
dent is  that  already  detailed,  as  providing  for 
the  election. of  deputies,  senators,  and  members 

^SeePomeroy,  "Introduction  to  Municipal  Law,"  §  731  ; 
also,  Pomeroy,  "Constitutional  Law,"  130-133;  Dicey,  "The 
Law  of  the  Constitution,"  29-30. 

*  Article  76. 


128        GOVERNMENT   OF  SWITZERLAND. 

of  the  Supreme  Court,  as  well  as  for  the  presi- 
dent of  the  Republic.^ 

The  constitution  of  the  republic  of  Colombia 
provides  that  "the  election  of  the  president  of 
the  Union  shall  be  made  by  the  vote  of  the 
States,  each  State  having  one  vote,  which  shall 
be  that  of  the  relative  majority  of  its  respective 
electors,  in  accordance  with  its  laws.  The  con- 
gress shall  declare  elected  president  the  citizen 
who  obtains  the  absolute  majority  of  the  votes 
of  the  States.  In  case  no  one  has  such  a  major- 
ity, the  congress  shall  elect  from  those  who  have 
received  the  larger  numbers  of  votes."  ^  The 
congress,  into  whose  hands  the  election  falls 
under  certain  conditions,  is  defined  by  the  consti- 
tution to  be  "the  House  of  Representatives  and 
the  Senate  taken  collectively.'"  In  comparing 
this  method  of  election  with  that  followed  in 
the  United  States,  it  will  be  observed  that  each 
State  has  only  one  vote  instead  of  having  a 
number  equal  to  its  congressional  representa- 
tion, and  that,  in  case  of  failure  on  the  part  of 
the  college  to  elect,  the  power  to  choose  a  presi- 
dent falls  to  the  two  houses  in  joint  session 
rather  than  to  the  lower  house,  as  in  the  United 
States.  The  framers  of  the  Constitution  of  Co- 
lombia, like  the  makers  of  the  United    States 

*See  pp.  102-103,  anU. 

*  Article  75. 
•Article  48. 


THE  EXECUTIVE.  1 29 

Constitution,  desired  to  emphasize  the  individu- 
ah'ty  of  the  States,  and  in  giving  to  each  a  single 
vote,  they  made  the  probability  of  a  president's 
election  by  a  minority  of  the  voters  much 
greater  than  in  the  United  States.  If  this  evil 
were  avoided  by  making  the  vote  of  the  peo- 
ple for  the  president  immediate,  the  power  of 
determining  the  election  might  remain  perma- 
nently in  the  hands  of  a  few  of  the  larger  States. 
The  method  of  electing  a  president,  which  is 
observed  in  Colombia,  is  followed  in  every  es- 
sential particular  in  the  Republic  of  Venezuela. 
The  citizens  of  each  State  vote  by  a  direct  and 
secret  ballot,  the  relative  majority  in  each  State 
determining  the  vote  of  the  State,  which  counts 
as  one  in  the  election.  An  absolute  majority  of 
all  the  States  is  required ;  and  when  no  can- 
didate has  this  number,  the  election  is  made 
by  the  congress  from  those  who  have  received 
the  highest  numbers  of  votes.  But  in  the  Ar- 
gentine Republic,  the  provisions  of  the  constitu- 
tion relating  to  the  election  of  a  president  are 
not  greatly  unlike  those  set  forth  in  the  Consti- 
tution of  the  United  States.  A  conspicuous 
point  of  difference,  however,  is  found  in  the  fact 
that  the  electoral  college  is  relatively  larger  in 
the  former  state  than  in  the  latter.  According 
to  Article  81,  "  the  capital  and  each  of  the  prov- 
inces shall  appoint  by  a  direct  vote  a  college  of 
9 


130        GOVERNMENT  OF    SWITZERLAND. 

electors,  equal  to  twice  the  number  of  deputies 
and  senators  which  they  send  to  congress,  with 
the  same  qualifications  and  under  the  same 
forms,  which  are  prescribed  for  the  election  of 
deputies. 

"  The  electors  having  met  in  the  capital  of 
the  nation,  and  in  that  of  their  respective  prov- 
inces, four  months  before  the  close  of  the  presi- 
dential term,  shall  proceed  to  elect  the  president 
and  vice-president  of  the  nation  by  signed  tick- 
ets, indicating  in  one  the  person  for  whom  they 
vote  for  president,  and  in  another  the  person 
whom  they  choose  for  vice-president."  The 
course  pursued  in  determining  the  result  of  such 
an  election  is  the  same  as  that  provided  in  the 
twelfth  amendment  of  the  United  States  Con- 
stitution, but,  in  case  of  failure  on  the  part  of 
the  electors  to  elect  a  president  the  choice  shall 
fall  to  the  congress  rather  than,  as  in  the  United 
States,  to  the  House  of  Representatives. 

The  qualifications  required  by  the  Constitu- 
tion of  the  United  States  for  the  office  of  presi- 
dent, are  that  the  candidate  shall  be  "  a  natural- 
born  citizen,"  thirty-five  years  of  age,  and  have 
"  been  fourteen  years  a  resident  within  the 
United  States."*  Essentially  the  same  quali- 
fications are  required  in  Mexico,  where  he  must 
be  "a  Mexican  citizen  by  birth,  in  the  exercise 
'  Article  2, 


THE   EXECUTIVE.  I31 

of  his  rights,  thirty-five  years  of  age,  not  an  ec- 
clesiastic, and  reside  in  the  country  at  the  time 
of  his  election."^  The  Constitution  of  Colombia 
makes  no  mention  of  qualifications,  and  that  of 
Venezuela  simply  states  that  he  must  be  a  citi- 
zen of  Venezuela  by  birth,  and  thirty  years  of 
age.''  This  lower  minimum  of  age  is  also  one  of 
the  qualifications  in  the  Argentine  Republic, 
where,  besides,  it  is  required  that  the  candidate 
shall  have  been  born  within  the  limits  of  the  Ar- 
gentine territory,  or  be  the  son  of  a  citizen  by 
birth,  belong  to  the  Roman  Catholic  commun- 
ion, and  be  in  receipt  of  an  annual  income  of 
two  thousand  dollars/ 

The  term  of  the  presidential  office  in  the  sev- 
eral federations  varies  from  one  to  six  years. 
It  is  one  year  in  Colombia,  two  years  in  Vene- 
zuela, four  years  in  the  United  States  and  Mex- 
ico, and  six  years  in  the  Argentine  Republic. 
In  case  of  the  removal  of  the  president  from  of- 
fice, or  of  his  death,  resignation,  or  inability  to 
discharge  the  powers  and  duties  of  the  office, 
these  powers  and  duties  shall  devolve  on  the 
vice-president  in  the  United  States  and  the  Ar- 
gentine Republic.  In  case  of  the  removal, 
death,  resignation,  or  inability  of  both  the  pres- 

*  Constitution  of  Mexico,  Art.  77. 

*  Constitution  of  Venezuela,  Art.  62. 

*  Argentine  Constitution,  Art.  76  and  47. 


132        GOVERNMENT   OF    SWITZERLAND. 

ident  and  the  vice-president,  the  consjress  shall 
determine  what  officer  shall  then  act  as  presi- 
dent, until  the  disability  be  removed,  or  a  presi- 
dent shall  be  elected.^  In  the  other  members 
of  this  group  of  states,  the  office  of  vice-presi- 
dent is  wanting.  In  case  of  the  vacancy  of  the 
presidential  office  in  Mexico,  the  president  of 
the  supreme  court  exercises  the  powers  belong- 
ing to  the  president.  In  like  case  in  Colombia, 
the  title  and  powers  of  president  are  assumed 
by  one  of  three  persons  whom  the  congress, 
by  absolute  majority,  elects  each  year  for  this 
purpose.''  A  merely  temporary  vacancy  in 
Venezuela  is  supplied  by  one  of  the  ministers 
elected  by  his  colleagues  ;  but.  when  the  vacancy 
is  caused  by  death,  resignation,  removal,  or  ter- 
mination of  the  period  of  election,  the  president 
of  the  supreme  court  shall  take  in  charge  the 
executive  office,  and  call  an  election,  "  at  least 
when  the  vacancy  occurs  within  the  last  six 
months  of  the  constitutional  period.'" 

Under  a  democratic  regime  there  is  manifest 
a  reluctance  to  continue  any  person  in  the  same 
office  for  a  number  of  terms.  The 'laws  and 
practices  of  the  federal  states  under  considera- 

'  Article  75  of  the  Argentine  Constitution,  and  the  sixth  sec- 
tion of  Article  2  of  the  United  States  Constitution,  which  treat 
of  this  topic,  contain  essentially  the  sanSe  statement. 

2  Article  65. 

'  Article  67. 


THE   EXECUTIVE.  1 33 

tion  illustrate  this  statement.  In  Colombia 
and  the  Argentine  Republic  a  person  cannot  be 
re-elected  president  for  the  constitutional  term 
immediately  following  that  during  which  he  has 
occupied  that  office.  In  Venezuela  this  prohi- 
bition extends  not  only  to  the  person  who  has 
been  president,  but  also  to  his  relatives  to  the 
fourth  degree  of  consanguinity.  The  same  pro- 
vision as  in  the  Argentine  Republic  and  Colom- 
bia existed  also  in  the  Mexican  constitution, 
until  by  a  recent  amendment  of  Article  78  the 
president  became  eligible  to  a  re-election  for  the 
constitutional  period  immediately  following; 
but  at  the  close  of  his  second  term  he  becomes 
disqualified  for  the  office  until  four  years  have 
elapsed,  counting  from  the  date  of  his  ceasing  to 
exercise  the  functions  of  the  office.  On  the 
point  in  question,  the  Constitution  of  the  United 
States  is  silent,  but  a"  constitutional  understand- 
ing," ^  as  Professor  Dicey  calls  it,  has  come  into 
existence  to  the  effect  that  no  president  shall  be 
re-elected  more  than  once. 

In  contrast  with  the  organization  of  this  de- 
partment in  other  federal  states,  the  executive 
authority  in  Switzerland  is  exercised  by  a  fed- 
eral council  composed  of  seven  members.^  The 
members  of  this  council  are  elected  for  a  period 

1  "The  Law  of  the  Constitution,"  29. 

2  Swiss  Federal  Constitution,  Art.  95. 


134        GOVERNMENT  OF   SWITZERLAND. 

of  three  years  by  the  two  legislative  assemblies 
in  joint  session,  and  any  Swiss  citizen  eligible 
to  the  lower  house  may  be  elected.  But  only 
one  member  may  be  selected  from  a  single  can- 
ton. The  Federal  Council  is  renewed  entirely 
after  each  renewal  of  the  lower  house  of  the 
legislature.  Vacancies  occurring  during  the  term 
of  election  are  filled  by  the  Federal  Assembly,  at 
its  next  session,  for  the  unexpired  portion  of 
the  term.^  While  in  office  the  members  of  the 
council  are  not  permitted  to  follow  any  business 
or  profession,  or  to  have  any  other  employment 
either  in  the  service  of  the  Federation  or  in  a 
canton.  *  The  Federal  Assembly,  the  body 
which  elects  the  members  of  the  council,  ap- 
points one  of  them  to  be  its  presiding  officer, 
who  is  called  "  the  president  of  the  confedera- 
tion." Another  member  is  appointed  by  the 
same  body  to  be  "the  vice-president  of  the  fed- 
eral council."  Both  "the  president  of  the  con- 
federation" and  "the  vice-president  of  the  fed- 
eral council"  are  appointed  for  one  year.  The 
same  member  may  not  be  vice-president  two 
years  in  succession;  and  the  president  having 
served  one  term  is  not  permitted  to  be  either 
president  or  vice-president  for  the  year  imme- 
diately   following.*      The    president    and    the 

^  Swiss  Federal  Constitution,  Art.  96. 

» Ibid.,  Art.  97. 

^Ibid.,  Art.  98. 


THE  EXECUTIVE.  1 35 

Other  members  of  the  Federal  Council  receive 
an  annual  salary  from  the  federal  treasury/ 
The  presence  of  four  members  of  the  council  is 
required  for  the  transaction  of  business.*  The 
members  of  the  Federal  Council  have  a  consulta- 
tive voice  in  the  legislative  assemblies,  and  also 
the  right  to  make  propositions  on  subjects  there 
under  consideration.* 

On  the  Federal  Council  devolve  most  of  the 
important  powers  that  usually  belong  to  the 
executive  in  a  federal  state.  It  directs  the  af- 
fairs of  the  Federation  in  accordance  with  fed- 
eral laws  and  resolutions.  It  sees  to  it  that 
these  laws  and  resolutions  and  the  federal  con- 
stitution are  observed ;  makes  effective  the  guar- 
antee of  the  cantonal  constitutions;  presents  to 
the  federal  legislature  projects  of  laws  and  reso- 
lutions; gives  its  opinion  on  propositions  which 
are  addressed  to  it  by  the  legislative  assemblies 
or  by  the  cantons;  provides  for  the  execution  of 
the  federal  laws  and  resolutions,  the  judgments 
of  the  federal  tribunal,  and  the  agreements 
reached  by  arbitration  between  the  cantons.  It 
makes  the  appointments  which  are  not  attribu- 
ted to  the  Federal  Assembly,  to  the  Federal  Tri- 
bunal, or  to  any  other  authority.     It  examines 

^  Swiss  Federal  Constitution,  Art.  99, 
^  Ibid.,  Art.  100. 
^  Ibid,,  Art,  loi. 


136        GOVERNMENT  OF    SWITZERLAND. 

and  approves  the  treaties  of  the  cantons  be- 
tween themselves  or  with  a  foreign  power.  It 
watches  over  the  interests  of  the  Federation 
in  international  affairs ;  guards  the  security 
of  Switzerland  against  external  dangers,  and 
maintains  its  independence  and  neutrality.  It, 
moreover,  watches  over  the  internal  security 
of  the  Federation,  and  the  maintenance  of  tran- 
quillity and  order.  In  case  of  urgency,  and 
when  the  legislature  is  not  in  sesson,  the  Fed- 
eral Council  is  authorized  to  raise  the  neces- 
sary troops,  and  to  direct  them,  under  the  ob- 
ligation to  convoke  the  legislative  assemblies 
immediately,  and  provided  the  number  of 
troops  raised  does  not  exceed  two  thousand 
men,  and  they  do  not  remain  more  than  three 
weeks  under  arms.  It  is  charged  with  the  con- 
cerns of  the  federal  army,  and  with  all  other 
branches  of  the  administration,  which  pertain  to 
the  Federation.  It  examines  the  laws  and  or- 
dinances of  the  cantons,  which  must  be  submit- 
ted for  its  approval ;  and  exercises  surveillance 
over  those  branches  of  cantonal  administration 
which  are  placed  under  its  control.  It  admin- 
isters the  finances  of  the  Federation,  proposes 
the  budget,  and  renders  an  account  of  receipts 
and  expenses.  It  superintends  the  action  of  all 
the  functionaries  and  employees  of  the  federal 
administration.     It  renders  an  account  of  its  ac- 


THE  EXECUTIVE.  1 37 

tion  to  the  Federal  Assembly.at  each  regular  ses- 
sion, presents  to  it  a  report  on  the  condition  of 
internal  and  external  affairs,  and  recommends 
legislative  action  on  such  measures  as  appear  to 
be  useful  for  increasing  the  common  prosperity. 
It  makes  also  special  reports  whenever  the  Fed- 
eral Assembly  or  one  of  its  sections  demands  it/  - 
The  affairs  which  thus  fall  to  the  Federal 
Council  are  distributed  by  the  council  itself 
among  the  several  members.  One  has  the  af- 
fairs of  the  interior,  one  justice  and  police,  one 
war,  one  the  treasury,  one  commerce  and  agri- 
culture, and  one  the  post-office  and  a  general 
supervision  over  the  railways.  The  president 
of  the  council  is  nominally  president  of  the 
Federation,  yet  his  legal  powers  are  only  those 
of  a  member  of  a  council  where  in  "theory 
each  is  responsible  for  all,  and  all  are  responsi- 
ble for  each."  "In  the  hands,  however,  of  a 
man  of  great  ability,  the  position  assumes  far 
more  importance  than  would  appear  likely  from 
a  mere  analysis  of  the  functions  which  the  con- 
stitution calls  upon  him  to  perform;  for  it  must 
be  borne  in  mind  that,  not  only  is  he  intrusted 
with  a  certain  control  over  the  various  depart- 
ments of  the  executive,  and  not  only  does  he 
represent  Switzerland  in  the  eyes  of  foreign 
nations,  and  has  frequently  in  that  capacity  to 

1  Swiss  Federal  Constitution,  Art.  102. 


138        GOVERNMENT  OF    SWITZERLAND. 

take  the  initiative  in  matters  of  general  policy, 
but  his  personal  influence  is  felt  within  the  Fed- 
eral Assembly  itself."  ^  The  division  of  the 
Federal  Council  into  departments  is,  however, 
only  for  the  sake  of  facilitating  the  examination 
and  dispatch  of  business;  the  decisions  emanate 
from  the  council  as  a  unit.  It  has  all  the  soli- 
darity of  the  English  Cabinet  and  a  more  secure 
tenure  of  office.  Its  members  may  take  part  in 
the  debates  of  the  two  houses  of  the  legisla- 
ture, but  are  not  obliged  to  retire  on  losing  leg- 
islative confidence.  Although  practically  a  com- 
mittee of  the  legislature  for  executive  purposes, 
it  is  still  endowed  with  a  good  degree  of  inde- 
pendence. Mr.  Freeman  calls  attention  to  the 
fact  that  the  Swiss  houses  "  do  formally,  at  the 
beginning  of  each  Parliament,  what  the  English 
House  of  Commons  does  silently;  that  is,  they 
determine  whether  the  existing  ministry  shall 
remain  in  office.  There  is  indeed  the  difference 
that  a  Federal  Council  or  Councillor,  when 
once  chosen,  cannot  be  got  rid  of  for  three  years, 
except  in  case  of  actual  crime.  Still  the  rela- 
tions between  the  Federal  Council  and  the  two 
houses  come  nearer  to  the  English  model  than 
they  do  to  the  totally  independent  position  of  the 
American  President  and  Congress."* 

^  Westminster  Review,  Feb.,  1888,  p.  208. 
i  Fortnightly  Review,  II,  542. 


THE  EXECUTIVE.  1 39 

Finally,  the  Federal  Council  and  its  depart- 
ments are  authorized  to  call  experts  for  special 
objects.^ 

1  Swiss  Federal  Constitution,  Art.  104. 


CHAPTER  VI. 

THE  JUDICIARY. 

Before  a  union  of  States  is  entitled  to  the  po- 
sition of  a  Bundesstaat,  or  federal  state,  it  must 
be  clothed  with  authority  to  exert  sovereign 
power  directly  upon  the  individual  citizens  of 
the  several  States;  and  a  necessary  means  for 
thus  exercising  this  power  is  a  court  or  a  system 
of  courts  existing  as  a  part  of  the  federal  organ- 
ism. In  the  United  States,  the  Constitution 
established  merely  one  supreme  court,  but  pro- 
vided for  the  existence  of  "such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain 
and  establish."'  The  organization  of  the  Su- 
preme Court,  including  the  power  to  fix  the 
number  of  the  judges,  was  left  to  Congress,  but 
the  appointment  of  the  judges  was  placed  in 
the  hands  of  the  President,  acting  with  the  ad- 
vice and  consent  of  the  Senate.  It  was,  more- 
over, provided   that  "the  judges,   both  of  the 

^U.  S.  Constitution,  Art.  3,'Sec.  i. 
(140^ 


THE  JUDICIARY.  I4I 

supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior."^  As  at  present 
organized,  the  Supreme  Court  consists  of  one 
chief  justice  and  eight  associate  justices,  any 
six  of  whom  shall  constitute  a  quorum.^ 

Of  the  supreme  courts  of  the  Spanish-Amer- 
ican federations,  that  of  the  Argentine  Repub- 
lic, with  respect  to  its  organization,  most  nearly 
resembles  that  of  the  United  States.  Here 
"the  judicial  power  of  the  nation,"  to  use  the 
language  of  the  Argentine  constitution,  "shall 
be  exercised  by  a  supreme  court  of  justice, 
and  by  other  inferior  tribunals  which  the  con- 
gress may  establish  within  the  territory  of  the 
nation."  As  in  the  United  States,  moreover, 
"the  judges  of  the  supreme  court  and  of  the 
inferior  courts  shall  be  appointed  by  the  presi- 
dent, with  the  consent  of  the  senate,  shall  hold 
their  offices  during  good  behavior,  and  shall  re- 
ceive for  their  services  a.  compensation  which 
the  law  shall  determine,  and  which  shall  not  be 
diminished  in  any  manner  while  they  continue 
in  office."'  In  the  Argentine  Republic,  how- 
ever, there  are  limitations  on  the  appointment 

*U.  S.  Constitution,  Art.  3,  Sec.   i. 

•■>  Revised  Statutes  of  the  United  States  (1878),  Sec.  673I 

'  Constitution  of  the  Argentine  Republic,  Arts.  86,  94,  and 

96 ;  see  also  United  States  Constitution,  Art.  3  ;    Constitution 

of  Colombia,  Art.  86. 


142        GOVERNMENT  OF    SWITZERLAND. 

of  judges  which  do  not  exist  in  the  United 
States.  In  the  latter  country  any  citizen  may 
be  made  a  justice  of  the  Supreme  Court,  but 
in  the  former  country  no  one  shall  become  a 
member  of  the  Supreme  Court  of  Justice  who 
is  not  an  advocate  of  at  least  eight  years  of 
practice,  and  has,  moreover,  the  qualifications 
required  for  a  senator.^ 

The  professional  conditions  required  in  the 
Argentine  Republic  are  wanting  in  both  Colom- 
bia and  Venezuela.  In  Colombia,  no  conditions 
are  prescribed,  except  that  of  the  five  justices  of 
the  supreme  court  not  more  than  one  shall  be 
taken  from  a  single  State  at  the  same  time.* 
The  article  of  the  constitution  which  creates  the 
supreme  court  of  Colombia,  provides  that  the 
judicial  power  shall  be  exercised  also  by  the 
senate  and  by  the  tribunals  of  the  States,  and  by 
those  which  are  established  in  the  territories. 
In  Venezuela,  however,  the  qualifications  re- 
quired for  the  position  of  justice  of  the  supreme 
federal  court  are:  (i)  That  the  candidate  shall 
be  a  citizen  of  Venezuela  by  birth  or  have  been 
ten  years  naturalized ;  (2)  that  he  shall  be  thirty 
years  of  age.  The  supreme  court  in  each  of 
these  states  is  composed  of  five  justices,  and  the 
number  is  fixed  by  the  constitution,  instead  of 

^  Argentine  Constitution,  Art.  97. 
*  Constitution  of  Colombia,  Art.  70W 


THE  JUDICIARY.  I43 

being  left  to  the  determination  of  the  national 
legislature,  as  in  the  United  States  and  the 
Argentine  Republic.  The  method  of  appoint- 
ment in  these  cases  is  also  unlike  that  of  the 
other  states.  It  is  essentially  the  same  in  both. 
The  legislature  of  each  State  presents  to  the 
congress  a  list  of  persons  in  number  equal  to 
the  number  of  the  places  to  be  filled,  and  the 
congress  declares  elected  those  who  have  re- 
ceived the  highest  number  of  votes.^  In  Vene- 
zuela the  votes  are  counted  in  five  groups  of 
States,^  while  in  Colombia  all  thevotes  presented 
are  counted  together.  In  case  of  a  tie  vote  in 
Colombia,  the  decision  is  made  by  lot,  while  in 
Venezuela  it  is  made  by  the  congress.  If  for  any 
cause  whatever  the  States  shall  not  have  pre- 
sented the  lists  as  required,  the  congress  shall 
elect  to  supply  the  lack  until  the  propositions 
are  sent  to  it' 

The  framers  of  the  Mexican  constitution,  in 

*  Constitution  of  Colombia,  Art.  76;  Constitution  of  Vene- 
zuela, Art.  86. 

*  Constitution  of  Venezuela,  Art.  86;  these  groups  are: — 

1.  Cumand,  Nueva  Esparta,  Maturin,  and  Barcelona. 

2.  Guayana,  Apure,  Zamora,  and  Portuguesa. 

3.  Bolivar,  Gusman  Blanco,  GuArico,  and  Carabobo. 

4.  Coj^des,  Yaracui,  Barquisimento,  and  Falcon. 

5.  Zulia,  Trujillo,  Guzman,  and  T.ichira. 

'Constitution  of  Colombia,  Art.  76;  Constitution  of  Vene- 
zuela, Art.  86. 


144        GOVERNMENT  OF    SWITZERLAND. 

treating  of  the  federal  judiciary,  appear  to  have 
taken  as  their  model  the  federal  courts  of  the 
United  States  in  the  form  into  which  they  have 
been  brought  by  the  provision  of  the  Constitu- 
tion and  subsequent  congressional  legislation; 
for,  in  Article  90,  it  is  provided  that  "the  exercise 
of  the  judicial  power  of  the  Federation  shall  be 
deposited  in  one  supreme  court  of  justice  and 
in  district  and  circuit  courts."  The  Mexican 
congress  has  little  power  over  the  federal  courts 
in  comparison  with  that  exercised  by  the  con- 
gress in  the  United  States.  The  creation  of  the 
district  and  circuit  courts  is  not  left  to  the  will 
of  congress,  but  is  determined  by  the  constitu- 
tion. The  number  of  judges  of  the  supreme 
court  is  fixed  at  eleven  by  the  constitution,  and 
not  left  to  the  determination  of  the  federal  leg- 
islature. These  judges  are  elected  for  a  term  of 
six  years,  by  an  indirect  election,  in  a  manner 
prescribed  by  a  general  electoral  law,  as  already 
indicated.^  Besides  the  eleven  "judges  proprie- 
tary," the  organization  of  the  supreme  court 
embraces  four  supernumerary  judges,  one  attor- 
ney-general, and  one  solicitor-general.  To  be 
eligible  to  membership  in  the  supreme  court,  the 
candidate  "must  be  instructed  in  the  science  of 
the   law,  according   to    the   judgment   of   the 

'  See  pp.  102  and  103,  ante. 


THE  JUDICIARY.  145 

electors,  more  than  thirty-five  years  of  age,  and 
a  Mexican  citizen  by  birth,  in  the  enjoyment  of 
his  rights."^  "The  duties  of  a  member  of  the 
supreme  court  cannot  be  resigned  except  for 
grave  reason,  approved  by  the  congress,  to  whom 
the  resignation  must  be  presented."  "^  In  case 
the  congress  is  not  in  session,  approval  must 
be  rendered  by  the  permanent  deputation. 

Under  the  British  North  America  Act,  the 
Parliament  of  Canada  vi^as  authorized  to  "pro- 
vide for  the  constitution,  maintenance,  and  or- 
ganization of  a  general  court  of  appeal  for 
Canada,  and  for  the  establishment  of  any 
additional  courts  for  the  better  administration 
of  the  laws  of  Canada."'  To  carry  out  this 
provision,  a  bill  to  create  a  supreme  court  for 
the  dominion  was  introduced  into  the  Canadian 
parliament  in  1875.  "It  was  the  expressed  in- 
tention of  ministers  to  have  prohibited  any 
further  appeals  to  her  Majesty's  privy  council. 
They  were  notified,  however,  that  the  bill  could 
not  be  sanctioned  unless  it  preserved  to  the 
Crown  its  rights  to  hear  the  appeals  of  all  Brit- 
ish subjects,  who  might  desire  to  appeal  in  the 
ultimate  resort  to  the  queen  in  council.  Ac- 
cordingly, a  saving  clause  to  that  effect  was  in- 

1  Constitution  of  Mexico,  Art.  93. 
"^Ibid.,  Art.  95. 

'  British  North  America  Act,  Art.  loi. 
10 


146        GOVERNMENT  OF    SWITZERLAND. 

serted  in  the  bill,  and  it  received  the  royal 
assent." '  The  court  thus  created  comprises  a 
chief  justice  and  five  associate  judges,  who  are 
appointed  by  the  governor-general,  and  who 
hold  office  during  good  behavior.  The  Canadian 
procedure  in  legislating  suggests  that  of  Great 
Britain,  but  the  decisions  of  the  Canadian  par- 
liament are  subject  to  a  judicial  control  which 
is  wholly  unknown  in  England,  and  which  sug- 
gests the  practice  of  the  United  States.  "  In 
Great  Britain  the  legislature  is  the  chief  power 
in  the  land.  There  being  no  written  constitution, 
no  plain-speaking  and  inflexible  statute  of  para- 
mount law,  under  which  the  government  of  the 
country  is  carried  on,  the  constitutionality  of  its 
acts  cannot  be  questioned  by  the  courts  in  the 
same  way  as  in  those  countries  wherein  there  is 
a  written  constitution.  The  acts  of  the  legisla- 
ture form  the  law,  which  the  courts  must  execute 
without  questioning  their  validity  or  testing  them 
with  the  constitution.  The  British  people  speak 
in  each  legislative  enactment;  and  their  last 
utterance  is  the  guide  for  their  courts,  who  are 
always  subordinate  to  the  legislature,  and  who 
exist  solely  by  their  permission.  These  imperial 
enactments  extend  at  times  to  the  Colonies; 
and  there  Her  Majesty's  courts  are  precisely  in 

1  Todd,  "  Parliamentary  Government  in  the  British  Colonies," 
150. 


THE  JUDICIARY.  I47 

the  same  position,  so  far  as  these  enactments  are 
concerned.  They  have  the  same  duties  undet 
them  as  the  British  courts  have  to  see  that  they 
are  carried  out  according  to  law." 

"An  imperial  statute  in  1867  gave  Canada  a 
written  and  defined  constitution.'  Under  this 
constitution  numerous  bodies  were  endowed 
with  large  legislative  powers.  All  the  laws 
were  to  be  executed  by  the  courts,  but  executed 
so  as  not  to  conflict  with  the  imperial  laws, 
which  must,  first  of  all,  be  executed.  Our  courts, 
therefore,  while  bound  to  execute  all  laws  in 
force,  must  be  the  judges  as  to  what  laws  are  in 
force.  A  Canadian  law  which  is  repugnant  to 
any  imperial  enactment  must  be  declared  void 
by  the  courts — a  higher  than  Canadian  power 
has  said  that  it  is  no  law  at  all.  Again,  the 
dominion  parliament  may  usurp  provincial 
rights,  or  a  province  assume  to  deal  with  domin- 
ion matters;  the  courts  still  sitting  under  the 
constitution,  the  imperial  enactment,  must  re- 
fuse to  obey  their  behests.  The  courts  in 
Canada  are  still  the  queen's  courts  and  bound  to 
execute  such  law  as  is  in  force,  but  equally 
bound  to  declare  that  the  act  of  any  of  our  leg- 
islatures, when  transcending  their  limits,  is  un- 
constitutional and  void.     The  courts,  so  long  as 

'The  British  North  America  Act,  1867;  see  Bourinot,  699- 
739. 


148        GOVERNMENT   OF    SWITZERLAND. 

they  are  permitted  to  exist,  are  not  the  creatures 
of  the  legislature;  they  are  of  course  subordi- 
nate to  constitutional  legislation,  but  they  are 
co-ordinate  and  in  effect  superior  to  that  which 
is  not  constitutional."  ^ 

The  relation  which  the  Canadian  courts  hold 
to  imperial  legislation  is,  in  many  respects,  the 
same  as  that  which  the  courts  of  the  United 
States  hold  to  the  federal  constitution.  The 
position  of  the  Canadian  courts  may,  moreover, 
be  regarded  as  a  result  of  imitation  rather  than 
of  inheritance  and  tradition.  In  creating  the 
supreme  court,  it  was  intended  that  it  "should 
serve  as  a  court  of  appeal  from  the  provincial 
courts,  and  likewise  possess  original  jurisdiction 
as  an  exchequer  court  in  revenue  causes,  and 
other  cases  in  which  the  Crown  is  interested." 
It  has  also  acquired  jurisdiction  "for  the  trial  of 
suits  against  the  Crown  in  Canada  by  petition 
of  right."  The  governor  in  council  may,  more- 
over, "  refer  any  matters  whatsoever  to  the  court 
for  hearing  or  consideration;  and  the  judges  are 
required  to  examine  and  report  upon  any  pri- 
vate bill,  or  petition  for  the  same,  that  may  be 
referred  to  them  by  the  Senate  or  House  of 
Commons  of  the  dominion.  It  is  also  provided 
that,  when  the  legislature  of  any  province  in 
Canada  shall  have  passed  an  act  agreeing  to  the 

'  O'Sullivan,  "  Government  in  Canada,"  194-196. 


THE  JUDICIARY.  1 49 

exercise  by  the  supreme  court  of  jurisdiction  in 
controversies  between  the  dominion  and  any 
such  province,  or  between  any  two  or  more 
provinces;  or,  in  suits  wherein  the  question  of 
the  validity  of  a  dominion  or  provincial  statute 
is  material  to  the  decision  thereof,  then  the  su- 
preme court  shall  exercise  jurisdiction  in  regard 
to  such  matters."  ^ 

The  supreme  court  is  the  highest  court  of 
appeal  in  Canada,  "  and  entertains  appeals 
within  and  throughout  the  dominion  from  the  last 
court  of  resort  in  the  provinces.  By  leave, 
however,  it  may  hear  an  appeal  from  any  decree, 
decretal,  or  order  made  by  a  court  of  equity,  or 
in  an  equity  proceeding  or  any  final  judgment 
of  the  superior  courts,  other  than  those  of 
Quebec,  without  intermediate  appeal  to  such 
last  provincial  court,  providing  the  case  origi- 
nally commenced  in  such  superior  court.  In 
certain  cases  in  election  petitions  an  appeal  in 
the  same  way  will  lie  to  this  court.  In  equity 
cases,  and  in  proceedings  in  the  nature  of  equity, 
an  appeal  will  lie  to  this  court,  even  from  orders 
made  in  the  exercise  of  judicial  discretion."  * 

Besides  the  supreme  court,  there  is  another 
dominion  court  called  the  Exchequer  Court  of 

'  Todd,  "  Parliamentary  Government  in  the  British  Colonies, " 
380-381. 

■^  O'Sullivan,  208.  «• 


ISO        GOVERNMENT  OF    SWITZERLAND. 

Canada.  It  "  looks  after  the  revenue  of  the 
country,  enforces  certain  penalties  on  behalf  of 
the  Crown,  and  has  jurisdiction  in  all  cases  in 
which  demand  shall  be  made  or  relief  sought  in 
respect  of  any  matter  which  might  in  England 
be  the  subject  of  a  suit  or  action  in  the  court  of 
exchequer  on  its  plea  side  against  any  officer 
of  the  Crown.  It  also  deals  exclusively  with 
those  cases  which,  in  the  English  exchequer 
court,  were  instituted  on  its  revenue  side  against 
the  Crown."  ^  The  supreme  court  judges  are 
the  judges  of  the  exchequer  court,  and  "  cases 
are  heard  before  a  single  judge  in  the  first  in- 
stance with  or  without  a  jury,  and  an  appeal 
lies  to  the  supreme  court."  ^ 

In  Canada  the  dominion  legislature  has  not 
only  organized  the  federal  courts  but  also  deter- 
mined the  extent  of  their  jurisdiction.  But  in 
the  United  States  only  the  organization  of  the 
courts  is  left  to  the  Congress;  the  extent  of  their 
power  is  fixed  by  the  terms  of  the  Constitution, 
and  the  Congress  cannot  increase  or  diminish  it. 
As  provided  in  the  second  section  of  Article  3 
of  the  Constitution  of  the  United  States,  "the 
judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or 

'  O'Sullivan,  214. 
■■' O'Sullivan,  215. 


THE   JUDICIARY.  151 

which  shall  be  made,  under  their  authority;  to 
all  cases  affecting  ambassadors,  oth*er  public 
ministers,  and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies  to 
which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  States,  be- 
tween a  State  and  citizens  of  another  State, 
between  citizens  of  different  States,  between  cit- 
izens of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  states,  citi- 
zens, or  subjects."  In  some  of  these  cases  the 
Supreme  Court  has  original,  and  in  others  only 
appellate,  jurisdiction.  The  line  of  distinction 
between  these  two  classes  of  cases  is  drawn 
by  the  second  paragraph  of  the  section  from 
which  the  previous  quotation  is  made:  "In  all 
cases  affecting  ambassadors,  other  public  minis- 
ters, and  consuls,  and  those  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction."  This  means  that  the  Su- 
preme Court  shall  have  original  jurisdiction 
in  the  cases  here  mentioned  and  no  other.' 
"  In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  the  Congress 
shall  make." 

^Marburyz/.  Madison,  i  Cranch,  137;  Curtis,   "Jurisdiction 
of  the  United  States  Courts,"  8. 


152        GOVERNMENT  OF    SWITZERLAND. 

A  case  "  between  a  State  and  citizens  of  an- 
other State"  can  at  present  arise  only  when  the 
suit  is  brought  by  the  State,  for  by  the  eleventh 
amendment  to  the  Constitution  it  was  provided 
that  "the  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit,  in 
law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign 
state."  A  State,  however,  may  be  sued  by  an- 
other State  or  by  a  foreign  sovereign.*  The 
appellate  jurisdiction  of  the  Supreme  Court  is 
exercised  over  the  inferior  courts  of  the  United 
States,  and  over  the  courts  of  the  several  States. 

In  determining  the  jurisdiction  of  the  federal 
courts  of  Mexico,  the  constitution  follows  in 
general  the  provisions  of  the  United  States  Con- 
stitution. The  federal  tribunals  take  cogni- 
zance of :  (i)  "All  controversies  which  arise  in 
regard  to  the  fulfillment  and  application  of 
the  federal  laws;  (2)  all  cases  pertaining  to 
maritime  law;  (3)  those  in  which  the  Federation 
may  be  a  party ;  (4)  those  that  may  arise  be- 
tween two  or  more  States;  (5)  those  that  may 
arise  between  a  State  and  one  or  more  citizens 
of  another  State;  (6)  civil  or  criminal  cases  that 
may  arise  under  treaties  with  foreign  powers; 
(7)  cases  concerning  diplomatic  agents  and 
^Curtis,  18. 


THE  JUDICIARY.  I  53 

consuls."^  The  Mexican  supreme  court  has 
original  jurisdiction  in  those  cases  which  arise 
between  States,  those  in  which  the  Union  is  a 
party,  and  those  concerning  controversies  as  to 
jurisdiction  among  the  federal  courts,  between 
the  federal  and  State  courts,  and  between  the 
courts  of  different  States.  In  all  the  other 
cases  the  supreme  court  has  authority  only  as 
a  court  of  appeal.*  The  provisions  regarding 
the  jurisdiction  of  the  federal  courts  which  are 
embodied  in  the  constitutions  of  Mexico  and  the 
United  States,  are  reproduced  in  all  essential 
particulars  in  the  constitution  of  the  Argentine 
Republic.  In  all  these  cases  the  constitutional 
law  alone  determines  the  jurisdiction  of  the  fed- 
eral courts,  but  in  Colombia  and  Venezuela  this 
is  left  in  part  to  congressional  legislation. 

In  Switzerland,  the  articles  of  agreement  be- 
tween the  three  Forest  districts,  formed  in  1291, 
provided  that  in  case  of  dissension  among  the 
parties  to  the  compact,  the  best  and  wisest  of 
them  should  step  forward  to  allay  the  discord  as 
it  should  seem  to  them  expedient.  If  any 
should  reject  the  action  of  this  self-instituted 
court,  those  opposed  to  the  dissatisfied  party 
should  unite  to  support  this  action.  This  pro- 
vision was  a  recognition  of  the  understanding 

*  Mexican  Federal  Con^itution,  Art.  97. 
^Ibid.,  Arts.  98-100. 


154        GOVERNMENT  OF   SWITZERLAND. 

which  exists  in  a  small  and  rude  community  as 
to  the  fitness  of  certain  members  to  direct  the 
community  action  to  the  achievement  of  cer- 
tain generally  desired  ends.  It  was  also  a  rec- 
ognition of  the  fact  that  power  may  reside  in  a 
community  despite  the  lack  of  a  permanent 
political  organization. 

The  second  phase  in  the  judicial  development 
of  the  Confederation  is  seen  in  the  organization 
I'of  a  court  of  arbitration.     This   appears   with 
the  admission  of  Zurich  into  the   Union,  and 
was  a  form  of  tribunal  common  to  the  mediaeval 
city  leagues.     The  number  of  arbitrators  was 
usually  fixed  at  two  for   each  party,  and  they 
met   at  some  neutral  point.     There  being  two 
arbitrators  from  each  side,  it  was  found   neces- 
sary to  provide  means   to  prevent  a  deadlock, 
and  the  most  conspicuous  means  employed  was 
that  of  appointing  an  impartial  foreman.    "  The 
question  of  the  choice  of  the  foreman  is  un- 
questionably the  main  point  in  the  whole  system 
of  the   courts  of  arbitration,    for  generally  he 
was  the  only  real  and  impartial  judge."  ^     The 
difficulties   attending   the  organization    of  this 
court  prevented  its  attaining  great  stability  or 
fulfilling  in  a  satisfactory  manner  the  functions 
of  a  general  court  of  the  Confederation.     The 

'Dubs,'*  Das  OefTentliche  Kecht  derschweizerischen  Eidge- 
nossenschaft,"  II,  76. 


THE  JUDICIARY.  I  55 

antagonisms  of  creeds  was  a  prominent  obstacle 
to  organized  growth  in  any  direction.  "After 
the  Reformation  several  attempts  were  made  by 
the  Diet  to  give  the  scheme  of  arbitration  a 
symmetrical  development,  but  without  any 
practical  result.  The  whole  system  broke  down 
completely  with  the  old  Confederation,  but  was 
revived  as  an  organization  o£  the  central  gov- 
ernment with  the  formation  of  the  articles  of 
confederation,  in  18 15."'  The  fifth  article  of 
this  instrument  sets  forth  the  system  as  re- 
vived, and  in  doing  so  describes  more  or  less 
accurately  an  ideal  of  the  institution  towards 
which  the  Coinfederation  had  been  striving.  In 
accordance  with  the  provisions  of  this  article, 
all  claims  and  controversies  between  the  cantons 
on  the  subjects  not  otherwise  provided  for  in 
the  articles  of  confederation,  were  turned  over 
to  the  confederate  court.  The  form  and  pro- 
cedure of  the  suit  were  as  follows  :  Each  of  the 
two  cantons  in  conflict  selected  from  the  officers 
of  another  canton  two  arbitrators,  or  one,  if  the 
cantons  were  agreed  in  the  matter.  If  the  con- 
troversy was  between  more  than  two  cantons, 
then  each  party  selected  the  number  of  arbitra- 
tors determined  upon.  The  arbitrators  having 
met,  attempted  to  set  aside  the  conflict  in  a 
friendly  manner  and  by  way  of  mediation.  If 
*  Dubs,  II,  76. 


156        GOVERNMENT  OF  SWITZERLAND. 

this  could  not  be  done,  the  arbitrators  then 
elected  a  foreman  from  the  magistrates  of  some 
neutral  canton  not  already  represented  among 
the  arbitrators.  If  they  could  not  agree  in  the 
choice  of  a  foreman,  he  was  appointecf  by  the 
Diet.  In  this  action  of  the  Diet,  however,  the 
cantons  in  conflict  had  no  voice.  The  foreman 
and  the  arbitrators  then  attempted  once  more  to 
allay  the  strife  by  arbitration  or  compromise, 
but  if  a  settlement  could  not  be  reached  by 
these  means,  they  pronounced  a  decision  in  ac- 
cordance with  the  rights  of  the  parties  con- 
cerned, at  the  same  time  awarding  the  costs. 
If  necessary,  the  Diet  undertook  the  execution 
of  the  decision  thus  rendered.^ 

The  court  of  arbitration  did  not,  in  any  of 
its  forms,  satisfy  the  demand  for  an  impartial 
and  authoritative  tribunal.  It  was,  therefore, 
set  aside  by  the  constitution  of  1848,  and  a  su- 
preme federal  court  was  organized,  consisting  of 
eleven  justices  and  eleven  substitutes,  one  from 
each  canton.  These  were  elected  by  the  Fed- 
eral Assembly  for  a  term  of  three  years.  Pro- 
vision was  made  for  the  annual  election  of  the 
president  and  the  vice-president  of  the  court, 
and  for  the  introduction  of  a  jury  in  criminal 
cases.     It  was  left  to  the  court  itself  to  deter- 

Bundesvertragz  wischen  den  XXII  Kantonen  der  Schweiz, 
vom  7,  August,  181 5,  Art.  5. 


THE  JUDICIARY.  I57 

mine  its  place  of  meeting.  Since  the  adoption 
of  the  amended  constitution  of  1874,  which  left 
to  the  legislature  to  determine  the  organization 
of  the  Federal  Tribunal,  the  number  of  its  mem- 
bers, the  length  of  their  term  of  office,  and  their 
salaries,  the  organization  of  the  supreme  court 
has  been  modified  in  several  particulars.  The 
number  of  justices  and  substitutes  has  been  re- 
duced from  eleven  to  nine,  and  it  is  provided 
that  the  court  shall  never  contain  two  or  more 
persons  from  the  same  family  at  any  given 
time.  The  official  period  has  been  extended 
from  three  to  six  years,  and  the  president  and 
vice-president  are  now  elected  for  the  terms  of 
two  years  each.  The  court  elects  two  court  re- 
porters for  terms  of  six  years,  one  of  whom 
must  belong  to  German,  and  the  other  to  Ro- 
mance, Switzerland,  and  of  these  one  is  required 
to  be  a  master  of  the  Italian  language;  but  for 
the  Italian  cases,  a  government  secretary  be- 
longing to  Italian  Switzerland  is  employed. 
The  determination  of  the  place  of  meeting  was 
left  to  the  Federal  Assembly,  which,  after  con- 
sidering specially  the  claims  of  Bern,  Lau- 
sanne, and  Luzern,  finally  selected  Lausanne. 
The  salaries  were  fixed  at  ten  thousand  francs 
a  year  for  the  justices,  eleven  thousand  for  the 
president  or  chief  justice,  and  from  six  to  eight 
thousand  for  the  reporters.     The  president  ex- 


158        GOVERNMENT  OF    SWITZERLAND. 

ercises  a  certain  disciplinary  function:  he  may 
cause  persons  disturbing  the  proceedings  to  be 
removed  from  the  court-room,  and,  if  need  be, 
imprison  them  for  twenty-four  hours.  He  also 
exercises  supervision  over  the  whole  personnel 
of  the  judiciary  department. 

As  in  the  United  States,  there  are  no  pro- 
fessional conditions  required,  by  the  constitu- 
tion, of  candidates  for  the  supreme  court  of 
Switzerland.  "Any  Swiss  citizen  eligible  to 
the  lower  house  of  the  legislature  may  be  ap- 
pointed to  the  Federal  Tribunal."  '  Persons  ig- 
norant of  the  law,  however,  are  hardly  more 
likely  to  be  appointed  to  the  supreme  court  in 
Switzerland  than  in  the  United  States.  Yet 
there  are  restrictions  on  appointment.  These 
exclude  from  the  list  of  candidates  members  of 
the  Federal  Council  and  the  Federal  Assembly, 
and  all  officers  holding  appointments  from  these 
bodies.  The  members  of  this  tribunal,  more- 
over, are  prohibited,  during  their  terms  of  office, 
from  occupying  any  other  position  either  in  the 
service  of  the  Federal  Government,  or  in  a  can- 
ton, and  they  are  not  permitted  to  follow  any 
business  or  profession. 

In  determining  the  jurisdiction  of  the  Swiss 
federal  court,  Article  113  of  the  constitution 
provides  that  it  shall  take  cognizance  of  con- 

*  Swiss  Federal  Constitution,  Art.  108. 


THE  JUDICIARY.  .  1 59 

flicts  of  competence  between  the  federal  and 
cantonal  authorities;  of  contests  between  can- 
tons involving  constitutional  law;  of  claims  for 
the  violation  of  constitutional  rights  of  the  citi- 
zens, as  well  as  claims  of  individuals  for  viola- 
tion of  concordats  or  treaties.  Administrative 
controversies  are  determined  by  the  federal  leg- 
islature. By  this  provision  a  wide  field  of  ju- 
dicial action  is  withheld  from  the  sphere  of  the 
court.  But  the  action  of  the  court  in  the  cases 
specified  is  taken  under  laws  passed  by  the  Fed- 
eral Assembly,  or  decrees  by  this  assembly  hav- 
ing a  general  bearing,  or  treaties  ratified  by  the 
same  authority.  Unlike  the  Supreme  Court  of 
the  United  States,  the  Swiss  federal  court  has 
no  power  to  pronounce  an  act  of  the  federal  leg- 
islature unconstitutional  and  void. 

Certain  points  left  indefinite  by  the  foregoing 
constitutional  provisions  have  been  determined 
by  subsequent  legislation.  To  note  some  of 
these,  whenever  it  is  claimed  that  a  case  before 
the  federal  court  falls  within  the  jurisdiction  of 
cantonal  authority,  or  that  it  should  be  settled 
by  foreign  authority,  or  by  a  court  of  arbitration, 
the  federal  court  itself  decides  as  to  it-s  own 
competence.  On  the  other  hand,  questions  of 
jurisdiction  between  two  federal  authorities,  for 
example,  between  the  Federal  Council  and  the 
Federal  Tribunal,  are  decided  by  the   Federal 


l6o        GOVERNMENT  OF    SWITZERLAND. 

Assembly.  The  Federal  Tribunal  is  called  upon 
to  settle  boundary  questions  between  two  can- 
tons, questions  of  the  application  of  international 
treaties,  and  questions  of  competence  between 
the  authorities  of  different  cantons.  It  decides 
in  cases  of  extradition,  when  the  demand  is  made 
under  an  existing  treaty,  in  so  far  as  the  appli- 
cation of  the  treaty  is  questioned.  It  takes 
cognizance,  moreover,  under  conditions  estab- 
lished by  law,  of  complaints  by  private  persons 
and  corporations  relating,  (i)  to  the  violation  of 
those  rights  which  are  guaranteed  by  the  federal 
constitution,  by  federal  legislation  enacted  to 
carry  out  the  constitution,  or  by  the  constitu- 
tion of  the  respective  canton ;  (2)  to  the  violation 
of  agreements  among  cantons,  as  well  as  of 
treaties  with  foreign  states.^ 

The  questions  thus  far  indicated  as  falling 
within  the  jurisdiction  of  the  federal  court  are 
constitutional  questions.  Besides  these,  the 
same  tribunal  takes  cognizance  of  certain  civil 
law  cases.  These  are  enumerated  in  Article  1 10 
of  the  constitution:  "i.  Those  between  the 
Federation  and  the  cantons.  2.  Those  between 
the  Federation  on  the  one  side  and  corporations 
or  private  persons  on  the  other,  when  these  cor- 
porations or  these  private  persons  are  plaintiffs, 
and  when  the  case  is  of  the  degree  of  importance 

1  Dubs,  II,  88. 


THE  JUDICIARY.  l6l 

required  by  the  federal  legislature.  3.  Those 
between  cantons.  4.  Those  between  cantons  on 
the  one  side  and  corporations  or  private  persons 
on  the  other,  when  the  case  is  of  the  degree  of 
importance  required  by  federal  legislation,  and 
when  one  of  the  parties  demands  it.  This  court, 
moreover,  decides  cases  relating  to  persons  with- 
out citizenship,  also  controversies  which  arise 
between  communes  of  different  cantons  touching 
the  right  of  citizenship."  Other  cases  may  be 
considered  by  this  court  when  the  parties  agree 
to  turn  them  over  to  it,  and  when  the  subject 
involved  is  of  the  degree  of  importance  required 
by  law.'  In  order  that  a  civil  case,  in  which  the 
matter  in  controversy  can  be  estimated  in  money, 
may  be  brought  before  the  Federal  Tribunal  on 
appeal  or  otherwise,  it  must  involve  at  least  three 
thousand  francs. 

The  Federal  Trfbunal  acts  with  the  assistance 
of  a  jury  in  certain  penal  cases  which  are  speci- 
fied in -the  112th  article  of  the  constitution  as 
follows:  "i.  In  cases  of  high  treason  towards 
the  Federation,  of  revolt  or  of  violence  against 
the  federal  authorities;  (2)  in  cases  of  crimes 
and  misdemeanors  under  international  law;  (3) 
in  cases  of  political  crimes  and  misdemeanors 
which  are  the  cause  or  the  consequence  of  dis- 
turbances  occasioning    federal    military    inter- 

^  Swiss  Federal  Constitution,  Art.   ill, 
11 


l62        GOVERNMENT  OF    SWITZERLAND. 

vention;  (4)  in  cases  where  an  officer  appointed 
by  federal  authority  is  turned  over  to  the  court 
for  a  penal  judgment." 

The  judgments  of  the  Federal  Tribunal,  as 
well  as  the  decrees  of  courts  of  arbitration  in 
intercantonal  conflicts,  are  executed  by  the 
Federal  Council.^  To  the  Federal  Assembly, 
however,  belongs  the  right  of  amnesty  and  par- 
don, with  reference  to  those  crimes  and  misde- 
meanors which  fall  within  the  jurisdiction  of  the 
Federal  Tribunal.* 

In  commenting  on  the  organization  and 
powers  of  this  court,  Professor  Dicey  points  out 
its  weakness  as  compared  with  the  Supreme 
Court  of  the  United  States.  "  Nothing,"  he 
says,  "  in  the  institutions  of  America  has  excited 
more  admiration  among  foreigners  than  the 
position  given  under  the  Constitution  to  the  fed- 
eral judiciary.  Nothing,  on  the  other  hand,  is 
less  satisfactory  than  the  position  occupied  in 
Switzerland  by  the  Federal  Tribunal.  That 
body,  it  is  true,  recalls  the  Supreme  Court  of  the 
United  States,  but  it  has  few  of  the  claims  to 
authority  possessed  by  the  American  court.  Its 
judges  are  not  appointed  for  life;  it  is  not  em- 
powered to  adjudicate  on  the  validity  of  laws 
passed  by  the  Federal  Assembly;  it  is  incom- 

*  Swiss  Federal  Constitution,  Art  102,  Sec.  5. 
•^IbU.,  Art.  85,  Sec.  7. 


THE  JUDICIARY.  1 63 

patent  to  deal  with  many  matters  which  in  Eng- 
land, no  less  than  in  America,  would  fall  within 
the  jurisdiction  of  the  judges;  its  decisions  are, 
it  would  appear,  enforced  by  the  action  of  the 
executive.  The  tendency,  indeed,  of  opinion 
throughout  the  Confederacy  is  to  strengthen  the 
position  of  the  Federal  Tribunal.  But  even 
were  the  authority  of  the  court  greatly  extended, 
it  would  never  attain  to  anything  like  the  power 
possessed  not  only  by  the  Supreme  Court  of 
America,  but  even  by  the  English  bench.  The 
truth  is,  that  the  traditions  of  Swiss  histpry  are 
unfavorable  to  the  development  of  that  regular 
supremacy  of  the  law  of  the  land  which  is  the 
marked  characteristic  of  the  institutions  founded 
by  the  English  people  an  both  sides  of  the  At- 
lantic. The  more  closely  the  Swiss  federal 
constitution  and  the  cantonal  constitutions  of 
Switzerland  are  studied,  the  more  apparent  it 
becomes  that  the  tendency  of  the  Swiss  people 
is  still,  as  it  has  been  for  centuries,  to  allow  to 
the  legislature  the  exercise  of  judicial  functions."  ' 
"^The  Nation,  Oct.  8,  1885. 


CHAPTER  VII. 

FOREIGN  RELATIONS. 

The  twenty-two  cantons  embraced  in  the 
Federation  are  named  in  the  first  article  of  the 
constitution,  thus  making  it  impossible  to  in- 
crease or  diminish  the  territory  of  Switzerland 
except  by  a  constitutional  amendment.  In  the 
United  States  the  power  of  annexing  territory 
is  exercised  by  the  government  under  the  Con- 
stitution. To  quote  from  a  decision  of  the  Su- 
preme Court  rendered  by  Chief  Justice  Mar- 
shall, "  the  Constitution  confers  absolutely  on 
the  government  of  the  Union  the  power  of  mak- 
ing war  and  of  making  treaties  ;  consequently 
that  government  possesses  the  power  of  acquir- 
ing territory  either  by  conquest  or  by  treaty.'" 
If  the  acquisition  is  made  by  conquest,  it  is  pre- 
sumed that  the  result  will  be  secured  by  treaty; 
and  it  is  to  be  remembered  that  the  treaty  is 
made,  not  by  Congress,  but  by   the  President, 

U  Pet.  542. 
(164) 


FOREIGN   RELATIONS.  1 65 

and  confirmed  by  the  Senate.  The  vast  power 
which  is  here  conferred  upon  the  President  and 
the  Senate  of  the  United  States,  in  Switzerland 
is  placed  directly  in  the  hands  of  the  people. 
The  project  of  annexation  requires  there  the  same 
direct  popular  vote  which  is  demanded  in  case  of 
a  proposition  to  amend  the  constitution  ;  and 
for  its  acceptance  it  must  have  not  only  a  ma- 
jority of  all  the  votes  cast,  but  also  the  vote  of 
a  majority  of  the  cantons. 

The  Federation  guarantees  to  the  cantons  their 
territories,  from  which  it  follows  that  a  canton 
may  not  relinquish  territory  cither  to  a  foreign 
state  or  to  another  canton.  Such  a  change  can 
be  made  only  by  a  change  in  the  federal  consti- 
tution. In  the  United  States,  the  transfer  of 
territory  from  one  State  to  another,  or  the 'erec- 
tion of  a  new  State  out  of  a  part  or  of  parts  of 
one  or  more  States,  may  be  effected  by  Congress 
and  the  legislatures  of  the  States  concerned. 
But  the  government  of  the  United  States 
holds  the  power  to  cede  to  a  foreign  State  a 
part  of  the  territory  of  the  United  States, 
whether  the  part  so  ceded  has  hitherto  been 
immediately  under  the  dominion  of  a  State  or 
Territorial  organization.  The  Swiss  Federa- 
tion, moreover,  guarantees  to  the  cantons  their 
constitutions.  In  this  is  involved  a  guarantee 
of  those  powers  of  the  cantons  which  do  not 


1 66        GOVERNMENT  OF   SWITZERLAND. 

conflict  with  the  powers  delegated  to  the  federal 
government,  "  the  liberty  and  rights  of  the  peo- 
ple, the  constitutional  rights  of  the  citizens,  and 
also  the  rights  and  prerogatives  which  the  peo- 
ple have  conferred  upon  their  officers."  *  The 
cantons  are,  in  fact,  required  to  seek  this  federal 
guarantee,  which  is  accorded  under  specified 
conditions:  "(i)That  the  cantonal  constitu- 
tions contain  nothing  contrary  to  the  provisions 
of  the  federal  constitution;  (2)  that  they  insure 
the  exercise  of  political  rights  under  republican 
forms — representative  or  democratic;  (3)  that 
they  have  been  accepted  by  the  people,  and  that 
they  may  be  revised  whenever  the  absolute  ma- 
jority of  the  citizens  demand  it."* 

The  carrying  out  of  the  first  provision  is  es- 
sential to  the  continued  existence  of  a  federal 
state.  A  violation  of  it  by  a  Swiss  canton  de- 
prives that  canton  of  recognition  and  protection 
for  its  institutions  by  the  Union.  In  the  United 
States,  the  power  of  the  Supreme  Court  to  de- 
clare void  any  clause  of  a  State  constitution, 
which  is  in  conflict  with  the  provisions  of  the 
federal  Constitution,  prevents  the  encroachment 
of  the  State  on  the  province  of  the  Fed- 
eration. The  second  point,  that  the  Swiss 
Federation  will  guarantee  only  such  cantonal 

*  Swiss  Federal  Constitution,  Art.  5. 
»/Wr/.,  Art.  6. 


FOREIGN   RELATIONS.  1 67 

constitutions  as  are  republican  in  form,  may  be 
compared  with  the  statement  of  the  United 
States  Constitution,  that  "the  United  States 
shall  guarantee  to  every  State  in  this  Union  a 
republican  form  of  government."  *  The  practi- 
cal result  of  introducing  this  second  condition 
was  to  require  and  bring  about  the  organization 
of  Neufchatel  as  a  republic,  which  had  hitherto 
existed  as  a  principality  under  the  king  of  Prus- 
sia. The  condition  that  the  cantonal  constitu- 
tion must  be  adopted  by  the  people  is  a  recog- 
nition of  the  democratic  foundation  of  the  state, 
and  at  the  same  time  it  is  a  constitutional  pro- 
vision to  secure  practical  adherence  to  this  idea. 
No  such  provision  appears  in  the  fundamental 
law  of  the  United  States,  it  being  presumed  in- 
stead that  the  adoption  of  a  State  constitution 
by  the  people  is  one  of  the  marks  of  a  republi- 
can form  of  government,  which  is  guaranteed 
to  the  State  by  the  federal  Constitution.  The 
final  clause  of  the  conditions,  quoted  from 
Article  6  of  the  Swiss  constitution,  namely, 
that  the  cantonal  constitution  must  be  capable 
of  revision  whenever  the  absolute  majority  of 
the  citizens  demand  it,  means,  "  that  there  must 
not  be  constructed  any  artificial  restrictions 
which  would  make  a  revision  legally  impossible 
in  a  case  in  which  a  decided  popular  majority 

'  U,  S.  Constitution,  Art.  4,  Sec.  4. 


1 68        GOVERNMENT  OF    SWITZERLAND. 

has  declared  in  favor  of  it  The  constitutions 
which  were  formed  in  the  period  between  1830 
and  1848  usually  contained  the  provision  that  a 
revision  could  be  made  only  within  designated 
periods;  it  might  very  easily  happen  that  when 
the  period  approached  there  was  no  need  of  re- 
vision, while,  when  the  people  wished  a  revision, 
it  could  not  be  made  without  violating  the  con- 
stitution." *  Such  restrictions  are,  however,  no 
longer  permitted. 

Under  the  old  confederation  the  several  can- 
tons exercised  the  right  of  forming  alliances 
among  themselves.  But  under  the  Act  of  Medi- 
ation all  alliances  of  one  canton  with  another 
were  prohibited.''  This  prohibition  was  con- 
tinued by  the  articles  of  alliance  of  181 5,  in  so 
far  as  such  unions  were  "disadvantageous  to  the 
general  union  or  to  the  rights  of  other  cantons." 
In  the  revised  draft  of  1833,  this  modifying 
clause  was  omitted,  and  a  definite  prohibition  of 
all  special  political  alliances  between  the  cantons 

1  Blumer,  I,  188.  Frequently  two  votes  are  taken  in  the 
canton,  one  to  determine  whether  or  not  the  constitution  shall 
be  revised,  the  other  to  accept  or  reject  the  revised  constitution. 
The  second  vote  is  referred  to  in  the  statement  of  the  condition 
that  the  cantonal  constitutions  must  be  accepted  by  the  people  ; 
the  first  vote,  on  the  other  hand,  when  it  is  affirmed  that  they 
may  be  revised  when  the  absolute  majority  of  the  citizens  de- 
mand it.     Blumer,  I.  189: 

'  Article  10. 


FOREIGN   RELATIONS.  1 69 

introduced.  This  last  provision  has  been  re- 
tained in  the  seventh  article  of  the  existing  con- 
stitution. Yet  to  the  cantons  has  been  left  the 
right  to  form  articles  of  agreement  on  subjects 
of  legislation,  administration,  or  justice.  It  is 
required,  however,  that  such  agreements  be  sub- 
jected to  federal  control,  and  to  this  end  they 
must  be  brought  before  the  Federal  Council.' 
If  they  are  found  to  contain  nothing  contrary  to 
the  federal  laws  or  to  the  rights  of  other  cantons 
they  are  approved,  and  in  this  case  the  cantons 
may  demand  the  co-operation  of  the  Federation 
in  their  execution.  In  the  contrary  case,  if  such 
an  agreement  is  not  approved,  or  if  another  can- 
ton raises  an  objection  to  it,  it  must  be  laid  be- 
fore the  Federal  Assembly  for  determination,* 
Questions  arising  between  cantons  regarding  the 
interpretation  and  application  of  these  agree- 
ments or  compacts  between  them  are  brought 
before  the  Federal  Tribunal  for  decision.^ 

Whenever  independent  communities  or  states 
unite  to  form  a  federal  union,  thereby  giving  up 
some  part  of  their  individual  authority,  an  im- 
portant motive  to  such  a  union  is  the  desire  for 
a  more  efficient  agent  in  the  conduct  of  affairs 
with  foreign  states.     This  motive  was  conspicu- 

'  Swiss  Federal  Constitution,  Art.  102,  Sec.  7. 

»  Ibid.,  Art.  85,  Sec.  5. 

^  Ibid.,  Art.  113,  Sec.  2.     , 


I70        GOVERNMENT  OF   SWITZERLAND. 

ous  in  the  union  of  the  British  colonies  in 
America  at  each  stage  of  the  development  of  a 
central  power,  and  not  less  clearly  manifest  in 
the  growth  of  Switzerland  from  a  loose  con- 
federacy into  a  strictly  federal  state.  In  America 
the  affairs  which  called  most  urgently  for  a  more 
perfect  union  were  the  affairs  of  trade  and 
finance;  but  in  Switzerland  the  most  prominent 
aim  of  the  struggle  for  federalism  was  the  main- 
tenance of  security,  independence,  and  neutrality.^ 
By  the  constitution  of  1848,  the  achievement  of 
this  end  was  thrown  upon  the  federal  govern- 
ment. To  the  Federation  belongs,  moreover, 
"the  right  to  declare  war  and  make  peace;  also 
to  make  alliances  and  treaties  with  foreign 
states,  particularly  treaties  relating  to  commerce 
and  customs  duties."*  Not  all  direct  dealings, 
however,  between  the  individual  cantons  and 
foreign  powers  have  been  prohibited.  "Excep- 
tionally, the  cantons  preserve  the  right  to  make 
treaties  with  foreign  states  on  subjects  relating 
to  public  economy,  local  relations,  and  police; 
nevertheless,  these  treaties  must  contain  nothing 
contrary  to  the  Federation  or  to  the  rights  of 
other  cantons."  *  Questions  of  conflict  under 
this  provision  are  referred  to  the  Federal  Council 

'■  Swiss  Federal  Constitution,  Art.  85,  Sec.  6. 

^/bid.,  Art.  8. 

3  /bid.,  Art.  9.  • 


FOREIGN   RELATIONS.  171 

and  there  settled,  unless  the  council  finds  ob- 
jection to  them  or  an  objection  is  raised  by  an- 
other canton,  in  which  case  they  are  brought 
for  settlement  before  the  legislative  assemblies. 
These  assemblies,  moreover,  exercise  the  rights 
and  powers  regarding  war,  peace,  and  treaties, 
which  have,  by  the  constitution,  been  conferred 
upon  the  general  government. 

The  question  as  to  the  extent  of  the  power 
which  may  be  exercised  by  the  Union  in  mak- 
ing treaties  under  the  provisions  of  Article  8, 
has  been  extensively  discussed  and  the  conclu- 
sion reached  that  the  limitation  of  powers 
drawn  between  the  Union  and  the  cantons  with 
respect  to  internal  affairs  does  not  define  the 
powers  of  the  Union  with  respect  to  foreign  re- 
lations. In  the  treatment  of  foreign  affairs  the 
power  of  the  Union  completely  overshadows  that 
of  the  cantons.  "The  Union  in  treaties  with 
foreign  states  is  empowered  to  deal  not  merely 
with  central  matters,  but  also,  in  spite  of  the 
provisions  of  Article  3,  with  subjects  whose  con- 
trol belongs  otherwise  to  the  cantons;  the  Union 
is,  however,  bound  by  the  other  provisions  of  its 
constitution  particularly  those  which  set  forth 
general  political  principles,  as  also  those  which 
specifically  guarantee  to  the  cantons  certain 
rights." ' 

^  Blumer,  I,  204. 


1/2        GOVERNMENT  OF   SWITZERLAND. 

Transactions  between  Switzerland  and  for- 
eign states  are  carried  on,  on  the  part  of  Switz- 
erland, by  the  Federal  Council,  whether  the  af- 
fairs under  consideration  immediately  concern 
individual  cantons  or  the  Union.'  When,  how- 
ever, these  transactions  relate  to  public  economy, 
local  relations,  and  public  affairs,  a  canton  may 
deal  directly  with  the  inferior  authorities  and 
employees  of  a  foreign  state.'' 

It  devolves  upon  the  Federal  Council,  more- 
over, to  grant  or  deny  demands  made  by  a  for- 
eign power  for  extradition  under  an  existing 
treaty;  but  whenever  the  application  of  the 
treaty  is  contested,  the  decision  rests  with  the 
Federal  Tribunal.  Under  this  provision,  the 
Federal  Council  is  subject  to  certain  restrictions. 
If  this  body  manifests  a  disposition  to  comply 
with  the  demands  of  a  foreign  state,  the  person 
whose  extradition  is  sought,  or  the  canton  within 
whose  territory  he  is,  may  contest  the  applica- 
tion of  the  treaty  under  which  the  demand  is 
made,  and  require  a  decision  of  the  Federal  Tri- 
bunal in  the  matter. 

The  foreign  relations  of  the  cantons  were  to 
a  certain  extent  influenced  by  the  fact  that  for 
a  long  time  Switzerland  was  a  recruiting  ground 
for  foreign  armies.     The  stern  defenders  of  re- 

•  Swiss  Federal  Constitution,  Art.  102,  Sec.  8  and  9;  also 
Art.  10. 

^Ibid.,  Art.  10. 


FOREIGN   RELATIONS.  1 73 

publican  liberty  at  home  served  all  causes 
abroad.  In  some  important  wars  they  were 
found  on  both  sides  of  the  conflict.  In  1373 
three  thousand  Swiss  fought  for  the  duke  of 
Milan  against  the  Pope.  They  entered  the 
armies  of  France  in  large  numbers.  In  1494 
they  took  part  in  the  expedition  of  Charles 
VIII.  against  Naples,  in  spite  of  the  orders  of 
the  Diet  to  the  contrary.  The  repeated  efforts 
of  the  Diet  to  prevent  the  Swiss  from  serving  as 
mercenaries  in  foreign  armies  were  fruitless. 
Even  solemn  agreements  among  the  cantons 
themseK'^es  to  abandon  the  practice  were  of  lit- 
tle avail.  In  1503  all  of  the  thirteen  cantons 
united  and  pledged  themselves  in  a  solemn  oath 
to  abstain  from  mercenary  engagements  with 
foreign  powers;  but  two  years  later  the  Great 
Council  of  Bern  determined  to^  accept  the 
French  subsidy,  and  sought  and  received  from 
the  Bishop  of  Lausanne  release  from  the  obliga- 
tions of  this  oath.  In  the  wars  between  the 
French  king  and  the  Emperor  Maximilian,  in 
1 5 16,  the  Swiss  fought  on  both  sides.  From 
that  time  till  the  present  century  France  con- 
tinued, with  certain  brief  periods  of  interruption, 
to  be  an  important  employer  of  Swiss  merce- 
naries ;  but  at  the  same  time  they  were  found 
also  in  the  service  of  many  of  the  other  powers. 
At  the  time  of  the  wars   between   France  and 


174        GOVERNMENT  OF    SWITZERLAND. 

Holland  in  the  last  decades  of  the  seventeenth 
century,  there  were  from  25,000  to  30,000 
Swiss  soldiers  in  the  French  army.  The  whole 
number  in  foreign  service  at  this  time  was  not 
far  from  50,000,  and  it  was  increased  later  to 
about  60,000,  The  latest  instances  of  this  mer- 
cenary service  were  the  Swiss  regiments  in  Na- 
ples and  the  Papal  States. 

Although  the  mercenary  service  of  the  Swiss 
brought  them  certain  advantages,  such  as  the 
maintenance  of  the  military  spirit  and  an  in- 
crease of  the  material  well-being  of  the  partici- 
pants, it  was  at  the  same  time  attended  by  se- 
rious disadvantages.  It  tended  to  destroy  the 
simplicity  and  sincerity  of  their  national  customs 
and  character;  it  involved  them  in  complicated 
and  dangerous  relations  with  foreign  powers; 
and  it  made  them  in  a  great  measure  practically 
dependent  on  those  states  whose  subsidy  they 
received.  Seeing  more  or  less  clearly  these  evil 
consequences,  the  central  authority  as  repre- 
sented in  the  Diet  undertook  at  various  times 
to  abolish  the  practice,  but  always  with  unsatis- 
factory results.  The  large  measure  of  independ- 
ence enjoyed  by  the  several  cantons  under  the 
old  confederation  enabled  them  to  disregard 
with  impunity  the  injunctions  of  the  Diet,  and 
to  continue  to  seek  in  foreign  service  their  in- 
dividual profit.     The   adoption  of  the   federal 


FOREIGN   RELATIONS.  1 75 

constitution,  however,  deprived  the  several  can- 
tons of  this  power,  and  placed  the  general  gov- 
ernment in  a  position  to  correct  the  abuses 
which  had  hitherto  existed.  By  subsequent 
federal  legislation,  in  1859,  every  Swiss  citizen 
was  prohibited  from  entering,  without  the  con- 
sent of  the  Federal  Council,  those  bodies  of 
foreign  troops  which  were  not  regarded  as  na- 
tional troops  of  the  respective  states.  The 
purpose  of  this  law  was  to  set  aside  the  disad- 
vantages and  dangers  which  this  foreign  mili- 
tary service  had  brought  upon  Switzerland. 
These  proceeded  from  the  fact  that  there  were 
certain  bodies  of  troops,  who,  "  bearing  the  Swiss 
name,  or  under  Swiss  command,  or  composed 
for  the  most  part  of  Swiss  soldiers,  were  fight- 
ing for  foreign  governments,  and  who  were  not 
concerned  about  the  cause  which  they  served, 
but  only  about  the  pay  which  they  received."' 
The  law  of  1859  had  in  view  specially  the 
abolition  of  such  troops  as  these,  but  it  did  not 
hinder  individual  Swiss  citizens  from  enrolling 
themselves  in  the  national  troops  of  a  foreign 
state.  The  prohibition  was  simply  to  the  effect 
that  they  could  not  enter  the  so-called  "  Swiss 
regiments"  in  foreign  service  and  "  Swiss  foreign 
legions,"  without  the  permission  of  the  Federal 
Council. 

1  Blumer,  I,  225. 


176        GOVERNMENT  OF    SWITZERLAND. 

The  foreign  relations  of  Switzerland  under 
the  confederation  were  further  complicated  by 
the  reception  of  foreign  pensions,  titles,  and 
orders,  by  influential  Swiss  citizens.  When  these 
persons  obtained  positions  of  power  at  home,  the 
fact  that  they  were  pensioners  of  a  foreign  state 
or  of  foreign  states  had  no  little  influence  in 
determining  the  position  of  the  government 
on  questions  of  foreign  politics.  Conspicuous 
statesmen  werepleasedon  public  occasions  to  dis- 
play the  orders  and  decorations  which  they  had 
received  from  foreign  princes,  and  in  this  they 
did  violence  to  the  republican  spirit  of  the 
people. 

"  The  cantonal  constitutions,  therefore,  in  the 
third  decade  of  this  century,  forbade,  as  a  rule, 
not  only  military  capitulations,*  but  also  the  re- 
ception of  pensions  and  titles  from  foreign 
states,  as  also  the  wearing  of  foreign  orders  while 
in  ofiicial  position."*  Later  provisions  of  a  sim- 
ilar import  were  embodied  in  the  federal  consti- 
tution. They  were  set  down  in  Article  12,  as 
follows:  "The  members  of  the  federal  author- 
ities, the  civil  and  military  functionaries  of  the 
Union,  and  the  federal  representatives  or  com- 

*  "  Une  capitulation  mililaire  6tait  un  trait6  conclu  avec  un 
gouvernement  Stranger  et  par  lequel  un  ou  plusieurs  cantons 
suisses  s'engageaient  &  luifournir,  moyennant  finance,  un  certain 
nonibre  d'hommes  arnnSs."    Droz,  "  Instruction  Civique,"  167. 

'■^  Blumer,  I,  229. 


FOREIGN   RELATIONS.  1 7/ 

missioners  may  receive  from  a  foreign  gov- 
ernment neither  pensions  or  salaries,  nor  titles, 
presents,  or  decorations, 

"If  they  are  already  in  possession  of  pensions, 
titles,  or  decorations,  they  must  renounce  the 
enjoyment  of  their  pensions  and  the  use  of  their 
titles  and  decorations  during  their  continuance 
in  office. 

"  Nevertheless  the  inferior  employees  may  be 
authorized  by  the  Federal  Council  to  receive 
their  pensions. 

"  In  the  federal  army,  neither  decorations  nor 
titles  accorded  by  a  foreign  government  may  be 
borne. 

"  All  officers,  subordinate  officers,  and  soldiers, 
are  prohibited  from  accepting  distinctions  of 
this  sort." 

The  prohibition  here  set  forth  may  be  com- 
pared with  that  involved  in  those  clauses  of  the 
United  States  Constitution,  which  provide  that 
no  title  of  nobility  shall  be  granted  either  by 
the  United  States  or  by  any  State,  and  that  "no 
person  holding  any  office  of  profit  or  trust  un- 
der them  shall,  without  the  consent  of  the  Con- 
gress, accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state."  ^ 

'  U.  S.  Constitution,  Art.  i,  Sees.  9  and  10. 
12 


CHAPTER  VIII. 

INTERNAL  RELATIONS. 

In  the  second  article  of  the  federal  constitu- 
tion are  enumerated  the  ends  for  which  the 
Union  exists.  The  first  of  these  is  the  mainte- 
nance of  the  nation  in  a  state  of  independence 
of  foreign  powers.  Nearly  all  laws  relating  to 
foreign  affairs  have  this  as  their  direct  or  indi- 
rect object.  The  second  end  of  the  Union  there 
specified  is  the  maintenance  of  peace  and  order 
within.  Although  put  in  the  second  place  in 
the  article  enumerating  the  purposes  of  the 
Union,  this  end  is  in  some  sense  a  condition  of 
the  first;  for  without  internal  peace  and  har- 
mony, the  continued  independence  of  the  nation 
would  be  impossible.  The  constitutional  basis 
of  legislation  for  the  preservation  of  internal 
peace  and  order  is  set  forth  in  the  following  pro- 
visions of  the  fourteenth  article:  "The  cantons 
are  bound  whenever  conflicts  arise  among  them 
to  abstain  from  taking  up  arms,  and  from  all  in- 
(178) 


INTERNAL   RELATIONS.  1 79 

dependent  action  in  their  own  behalf,  and  to 
subject  themselves  to  the  decisions  which  shall 
be  rendered  on  these  conflicts  in  accordance 
with  federal  prescriptions." 

As  already  indicated,  conflicts  which  arise  un- 
der the  constitution  or  in  connection  with  the 
federal  decrees  and  concordats  are  settled  by  the 
Federal  Council  and  the  Federal  Assembly.  Civil 
conflicts,  on  the  other  hand,  are  judged  by  the 
Federal  Tribunal.'  Under  Article  61,  which 
provides  that  "  final  civil  judgments  rendered  in 
one  canton  are  executory  in  the  whole  of  Switz- 
erland," a  question  sometimes  arises  as  to  the 
obligation  of  one  canton  to  carry  out  the  decree 
of  the  cantonal  court  of  another  canton,  and 
this  question  has  to  be  decided  by  the  federal 
authorities.  An  attempt  on  the  part  of  a  court 
of  one  canton  to  execute  its  decrees  in  another 
canton,  in  the  face  of  the  indifference  or  willful 
neglect  of  the  second  body,  is  an  act  prohibited 
by  Article  14.  The  procedure  in  such  a  case  is 
through  an  application  to  the  federal  authorities 
for  a  judgment  requiring  the  second  canton  to 
fulfill  its  obligation. 

The  provisions  made  by  decrees  and  judicial 
decisions  for  the  settlement  of  intercantonal 
conflicts  are  inadequate  to  preserve  peace  and 
order,  unless  supported  by  other  provisions  for 

^Articles  IIO-113. 


l8o        GOVERNMENT  OF    SWITZERLAND. 

the  exercise  of  force  to  the  same  end.  This  fact 
appears  to  have  been  perceived  by  the  makers 
of  the  Swiss  constitution,  and  in  Article  i6  they 
laid  down  the  rule  under  which  internal  order 
may  be  enforced.  This  article  provides  that 
"in  case  of  internal  disorder,  or  when  danger  is 
threatened  by  another  canton,  the  government 
of  the  canton  menaced  must  inform  the  Federal 
Council  of  the  impending  danger  immediately, 
in  order  that  this  body  may  be  able  to  take  the 
necessary  measures  within  the  limits  of  its  com- 
petence,' or  convoke  the  Federal  Assembly. 
Whenever  there  is  urgency,  the  government  of 
the  threatened  canton  is  authorized,  on  immedi- 
ately informing  the  Federal  Council,  to  ask  aid 
of  other  cantons  which  are  obliged  to  render  it. 
When  the  government  of  this  canton  is  not  in  a 
condition  to  ask  aid,  the  competent  federal  au- 
thority 7nay  intervene  without  requisition;  it 
nmst  do  so  when  the  disorders  endanger  the  se- 
curity of  Switzerland." 

It  is  to  be  observed  that  by  these  provisions 
disturbances  of  the  peace  within  a  canton  are 
subjected  to  the  same  remedial  measures  as 
attacks  of  one  canton  on  another.  It  is  to  be 
observed,  moreover,  that  these  measures  consist 
in  an  appeal  to  the  federal  government,  as  the 
rule,  and  in  an  appeal  to  other  cantons  as  the 

*  These  are  defined  by  Art.  102,  Sees.  3,  10,  and  11. 


INTERNAL   RELATIONS.  l8l 

exception.  The  development  of  means  of  com- 
munication by  telegraph  and  railway  has  made 
it  as  easy  at  the  present  time  for  a  threatened 
canton  to  appeal  to  the  Federal  Council  as  to  a 
neighboring  canton,  and  therefore  use  is  seldom 
made  of  the  permitted  exception.  It  is  now 
almost  exclusively  the  practice  for  a  canton  to 
demand  aid  only  of  the  federal  government.  If 
this  position  of  a  Swiss  canton  is  compared  with 
that  of  an  American  State,  it  will  be  found  that 
the  State  is  the  more  independent  of  external 
interference.  It  is  not  obliged  to  obey  the  sum- 
mons of  any  other  State  for  help;  it  has,  in  fact, 
no  right  to  render  such  aid.  The  federal  gov- 
ernment in  the  United  States  may  not  interfere 
to  preserve  order  in  a  State,  except  on  the  re- 
quest of  the  legislature  or  the  executive  of  this 
State,  while  in  Switzerland  a  canton  must  ren- 
der aid  when  asked  for  it  by  another  canton, 
and  the  federal  government  may  intervene  in 
the  affairs  of  a  canton  under  certain  circum- 
stances, even  when  the  canton  has  not  applied 
for  such  intervention.  "But  the  Swiss  Union 
will  always,  so  long  as  it  receives  no  notice,  be 
obliged  to  proceed  on  the  presumption  that  no 
danger  exists  or  that  the  respective  canton  is 
strong  enough  to  manage  its  own  affairs.  A 
disturbance  which  the  power  of  the  canton  is 


1 82        GOVERNMENT  OF    SWITZERLAND. 

quite  competent  to  control  offers  no  occasion  for 
the  intervention  of  the  federal  authorities." ' 

In  case  of  federal  intervention  in  the  affairs  of 
a  canton  the  federal  authorities  are  enjoined 
from  violating  the  rights  of  the  cantons,  which 
have  been  established  by  the  fifth  article  of  the 
federal  constitution.  The  expenses  of  such  an 
intervention  are  borne,  as  a  rule,  by  the  canton 
which  demanded  it  or  occasioned  it;  but  the 
Federal  Assembly  may  provide  that,  on  account 
of  special  circumstances,  the  expenses  shall  be 
paid  out  of  the  federal  treasury." 

In  case  of  actual  hostilities  arising  through  the 
antagonisms  of  cantons  among  themselves,  or 
through  the  unfriendly  attitude  of  foreign  pow- 
ers, every  canton  is  required  to  permit  the  free 
passage  of  troops  over  its  territory;  and  it  is 
further  provided  that  these  troops  shall  be  under 
federal  command.* 

The  internal  relations  of  a  federal  union  are 
further  illustrated  by  the  laws  which  fix  the 
attitude  of  a  State  towards  criminals  taking  ref- 
uge within  its  territory  from  another  State.  An 
independent  state  has  the  power  to  determine 
whether  the  criminal  shall  be  protected  in  his 
place  of  refuge,  or  expelled  beyond  the  borders, 

^  Rtittimann,  "Dasnordamerikanische  Bundesstaatsrecht  verg- 
lichen  mit  den  politischen  Einrichtungen  der  Schweiz."    II,  8i. 
'^  Article  i6,  Sees.  3  and  4. 
'Article  17. 


INTERNAL  RELATIONS.  1 83 

or  handed  over  to  the  authorities  of  the  state  in 
which  the  crime  was  committed.  If  it  becomes 
bound  to  pursue  the  last-named  course,  it  is  by 
a  voluntary  agreement  entered  into  with  another 
state  or  with  other  states,  and  such  an  agree- 
ment has  only  a  moral  force,  there  being  no 
power  which  may  legitimately  compel  its  ob- 
servance. But  the  action  of  a  member  of  a  fed- 
eral union  in  this  regard  is  usually  determined 
by  the  federal  constitution,  or  by  federal  legis- 
lation had  in  pursuance  of  constitutional  pro- 
visions. In  the  American  Union,  the  course 
which  a  State  must  pursue  is  clearly  marked 
out  by  the  federal  Constitution:  "A  person 
charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be 
found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he 
fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime."  * 

This  provision  extends  to  both  statutory  and 
common-law  crimes,  but  concerns  only  such  per- 
sons as  have  fled  from  justice,  that  is  to  say, 
"  the  person  accused  must  have  been  within  the 
jurisdiction  of  the  State  accusing  him,  and  must 
have  fled  therefrom.  If,  in  fact,  he  was  never 
within  it,  he  cannot  have  fled  from  its  justice; 
and  therefore  a  person  who  in   another  State 

^  Article  IV,  Sec.  2. 


1 84        GOVERNMENT  OF    SWITZERLAND, 

may  have  conspired  with  others  to  commit  an 
offense  in  Missouri,  is  not  demandable  by  Mis- 
souri as  a  fugitive.  But  if  he  was  within  the 
State  at  the  time  of  committing  the  offense,  he 
is  held  to  be  a  fugitive  if  he  left  without  awaiting 
the  consequences  of  his  conduct."  ^  The  de- 
mand must  be  based  on  a  charge  against  the 
accused  made  in  some  due  form  of  law,  and 
when  presented  it  becomes  the  duty  of  the  exec- 
utive on  whom  it  is  made  to  respond  to  it;  but 
if  he  shall  refuse  to  do  so  the  federal  tribunals 
have  no  power  to  compel  obedience.  "If  the 
State  to  which  an  offender  has  fled  has  herself 
against  him  some  unsatisfied  demands  of  justice, 
it  is  proper  for  her  to  proceed  to  enforce  it  before 
honoring  a  requisition."'*  If,  moreover,  there  are 
other  charges  against  the  offender  besides  that 
on  which  his  extradition  is  had,  he  must  be  al- 
lowed to  return  to  the  State  which  has  surren- 
dered him  before  he  can  be  prosecuted  on  any 
other  charge. 

While  the  Constitution  of  the  United  States 
contains  clear  and  specific  provisions  for  the  ex- 
tradition of  offenders,  the  federal  constitution 
of  Switzerland  defers  the  whole  matter  to  fed- 
eral legislation,  setting  forth,  however,  the  single 
limitation  that  "extradition  may  not  be  rendered 

'  Cooley,  "General  Principles  of  Constitutional  Law,"  190. 
*  Cooley,  192. 


INTERNAL  RELATIONS.  1 85 

obligatory  for  political  crimes  and  those  of  the 
press."  ^  In  view  of  the  marked  differences  in 
the  political  character  of  the  cantons,  this  limita- 
tion appears  reasonable,  in  fact  necessary  to  pre- 
vent a  canton  from  sometimes  being  called  upon 
to  do  violence  to  its  own  convictions  by  deliver- 
ing up  a  political  offender  whose  acts  appear 
rather  to  merit  praise  than  punishment. 

This  subject  was  taken  up  by  federal  legisla- 
tion in  the  law  of  July  24,  1852.  It  was  made 
the  duty  of  every  canton  to  permit  the  arrest 
and  extradition  of  those  persons  who  had  been 
condemned  for  certain  crimes  or  who  were  ac- 
cused of  such  crimes  in  due  legal  form.  In  the 
United  States  the  law  fails  to  specify  the  crimes 
for  which  extradition  may  be  had,  simply  ad- 
hering to  the  constitutional  designation  of 
"treason,  felony,  or  other  crimes;"  but  in  Switz- 
erland the  second  article  of  the  law  of  1852 
enumerates  the  crimes  for  which  one  canton  may 
demand  from  another  the  extradition  of  the 
criminal.^     As  an  exception  to  the  general  rule, 

1  Article  55  of  the  Constitution  of  1848,  and  Article  67  of  that 
of  1874. 

'■•They  are:  "Mord,  Kindsmord,  Todtschlag  und  Tiidtung 
durch  Fahrlassigkeit;  Abtreibung  und  Aussetzung,  Brandstift- 
ung,  Raub,  Erpressung,  Diebstahl,  Unterschlagung,  Pfandde- 
fraudation,  Betrug,  betrilglicher  Bankerott,  biiswillige  Eigen- 
tbumsschiidigung  mit  Ausnahme  unbedeutender  Falle  ;  schwere 
Korperverletzung,    Nothzucht,     Blulschande,    widernatilrliche 


l86        GOVERNMENT  OF    SWITZERLAND. 

extradition  may  be  refused,  of  persons  who  have 
acquired  citizenship,  or  who  have  settled  in  a 
canton,  when  this  canton  binds  itself  to  try  and 
punish  them  according  to  its  own  laws,  or  allows 
a  sentence  already  pronounced  to  be  executed. 
This  provision,  which  is  wanting  in  both  Ger- 
many and  the  United  States,  establishes  an  in- 
ternational relation  rather  than  a  relation  befit- 
ting members  of  a  federal  state.  If  a  person  is 
accused  of  several  crimes  committed  in  different 
cantons,  he  shall  be  handed  over  to  all  the  can- 
tons in  order,  first  to  that  canton  in  which  the 
gravest  crime  was  committed.  If,  moreover,  one 
crime  is  committed  in  several  cantons,  that  can- 
ton in  which  the  principal  action  was  had  may 
demand  the  extradition  of  all  those  who  have 
been  guilty  of  participation  in  the  offense  in 
other  cantons. 

It  has  been  found  expedient  to  bring  the 
members  of  a  federal  union  into  some  clearly 
defined  legal  relation  to  one  another,  not  only 
with  respect  to  criminal  affairs,  but  also  with  re- 
spect to  civil  cases.     In  this  regard  the  cantons 

Wollust  (Sodomie),  Bigamie,  Menschenraub,  Entfiihrung,  Un- 
terdrilckung  des  Familienstandes,  Anmassung  eines  fremden 
Familienstandes,  Bestechung,  Missbrauch  der  Amtsgewalt,  An- 
massung der  Amtsgewalt,  Falschung,  Meineid,  falsches  Zeugniss, 
falsche  Verzeigung  in  Bezug  auf  die  hier  bezeichneten  Ver- 
gehen,  Miinzfiilschung  oder  andere  dazu  gehdrende  Vergehen.' 
Blumer,  I,  255. 


INTERNAL   RELATIONS.  1 87 

of  Switzerland  hold  a  somewhat  more  intimate 
relation  to  one  another  than  the  States  of  the 
American  Union.  As  already  noticed,  final  civil 
judgments  rendered  in  one  canton  are  executory 
in  any  other  canton.  No  such  latitude  as  this 
is  given  to  a  decision  of  a  State  court  in  the 
United  States.  The  Constitution  provides, 
however,  that  "full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State. 
And  the  Congress  may  by  general  laws  prescribe 
the  manner  in  which  such  acts,  records,  and  pro- 
ceedings shall  be  proved,  and  the  effect  thereof, "  ^ 
In  pursuance  of  the  provisions  of  the  last  sen- 
tence of  this  section,  the  Congress  has  provided 
that  "  the  acts  of  the  legislature  of  any  State  or 
Territory,  or  of  any  country  subject  to  the  juris- 
diction of  the  United  States,  shall  be  authenti- 
cated by  having  the  seals  of  such  Territory, 
State,  or  country  affixed  thereto.  The  records 
and  judicial  proceedings  of  the  courts  of  any 
State  or  Territory,  or  of  any  country,  shall  be 
proved  or  admitted  in  any  other  court  within 
the  United  States,  by  the  attestation  of  the  clerk, 
and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  that  the  said 
attestation   is  in   due  form.     And  the  said  rec- 

^  Article  4,  Sec.  I. 


1 88        GOVERNMENT  OF    SWITZERLAND. 

ords  and  judicial  proceedings,  so  authenticated, 
shall  have  such  faith  and  credit  given  to  theni 
in  every  court  within  the  United  States  as  they 
have  by  law  or  usage  in  the  courts  of  the  State 
from  which  they  are  taken.'" 

These  provisions  regarding  the  weight  to  be 
given  to  the  public  acts  and  records  of  one 
State  in  another  State  appear  important  in  view 
of  the  impossibility  of  enforcing  a  civil  judgment 
by  a  State  court  except  in  the  State  where  it  is 
rendered.  If  it  becomes  necessary  to  enforce 
such  a  judgment  outside  of  these  limits,  the  end 
can  be  reached  only  by  a  new  action  in  the  second 
State,  demanded  on  the  ground  of  the  former 
judgment  and  supported  by  the  records  and 
proceedings  of  the  former  trial.  In  a  similar 
case  in  Switzerland,  however,  no  new  trial  is  re- 
quired, the  way  being  open  to  an  immediate 
execution  of  the  judgment  either  in  the  canton 
where  it  was  rendered  or  in  any  other  canton. 
*  Revised  Statutes  of  the  United  States  (1878),  §  905. 


CHAPTER    IX. 

THE  ARMY  AND  THE  FINANCES. 

In  establishing  constitutional  provisions  with 
respect  to  the  army,  the  Swiss  have  been  care- 
ful to  avoid  the  danger  to  liberty  which  a  prom- 
inent development  of  military  affairs  would 
present.  In  the  early  history  of  the  Confeder- 
ation the  several  cantons  were  dissuaded  from 
maintaining  permanent  military  forces  by  the 
economical  burdens  which  the  support  of  such 
forces  would  impose.  The  Helvetic  Republic, 
in  alliance  with  France,  was,  however,  obliged 
to  maintain  a  standing  army.  "  The  Act  of 
Mediation,  which  gave  the  Union  no  financial 
means  for  paying  regular  troops,  took  care  that 
the  cantons  should  not  win  too  strong  a  position 
in  opposition  to  the  federal  power,  and  to  this 
end  limited  the  number  of  paid  troops  which  a 
canton  might  maintain,  to  two  hundred  men." ' 
With   the  adoption  of  the  articles  of  confera- 

'  Blumer,  II,  315. 

(189) 


IQO        GOVERNMENT  OF    SWITZERLAND. 

tion,  of  1815,  there  was  a  return  towards  the 
ancient  independence  of  the  cantons,  and  the 
limitation  which  had  been  imposed  on  the  mili- 
tary power  of  the  cantons  by  the  Act  of  Media- 
tion, was  removed.  In  the  project  for  revising 
the  constitution,  which  was  brought  forward  in 
1832,  it  was  proposed  so  to  restrict  the  power 
of  the  individual  canton  in  this  regard,  that, 
without  the  consent  of  the  federal  authorities,  it 
might  not  maintain  more  than  three  hundred 
men  as  a  standing  force.  Essentially  the  same 
restriction  appeared  also  in  the  constitution  of 
1848,  where  it  was  provided  that  no  canton  or 
half-canton  should,  without  the  consent  of  the 
fq^leral  authorities,  maintain  a  standing  force  of 
more  than  three  hundred  men,  not  including 
the  Landjdgerkorps.  And  this  provision  of  1848 
was  retained  in  the  amended  constitution  of 
1874.^  But  the  practice  of  the  cantons  has 
fallen  so  far  within  these  legal  limitations,  that 
at  present  no  canton  maintains  any  standing 
troops  whatsoever.  The  federal  government, 
however,  maintains  military  schools,  in  which  a 
large  number  of  persons  are  almost  constantly 
under  instruction,  but  these  do  not  constitute  a 
standing  army,  and  therefore  the  conduct  of 
the  federal  authorities  in  this  matter  is  not  in 
conflict  with  the  prohibition  of  Article  13  of  the 
present  constitution, 
^Article  13. 


THE  ARMY  AND  THE  FINANCES.         191 

Inasmuch  as  the  existence  of  any  government 
presumes  the  capacity  to  exercise  force,  it  is 
clear  that,  in  case  of  a  constitutional  provision 
prohibiting  the  maintenance  of  a  standing  army, 
there  must  be  some  legal  means  provided 
through  which,  in  case  of  need,  an  army  may 
be  called  into  active  existence.  The  federal 
government  of  Switzerland  has  solved  this 
problem  by  "making  every  Swiss  liable  to  mili- 
tary service.  It  provides,  moreover,  for  furnish- 
ing, when  required,  support  to  those  who  have 
suffered  a  permanent  loss  of  health  in  this  serv- 
ice, or  to  the  families  of  those  who  have  lost 
their  lives.  The  law  embracing  these  provisions 
also  ordains  that  soldiers  entering  the  service  of 
the  Federation  shall  receive,  without  charge, 
their  first  equipment,  clothing,  and  arms;  and, 
moreover,  that  they  shall  retain  their  arms  un- 
der conditions  established  by  the  federal  leg- 
islature. The  same  authority  shall  also  fix  the 
conditions  of  the  tax  for  exemption  from  mili- 
tary service. 

The  military  organization  as  existing  at  pres- 
ent is  the  result  of  a  long  period  of  growth,  and 
many  of  its  features  may  be  traced  through  the 
successive  fundamental  laws  of  Switzerland. 
The  basis  of  the  existing  organization,  which 
has  been  perfected  through  federal    legislation, 


192        GOVERNMENT   OF    SWITZERLAND. 

is  found  in  the  following  articles  of  the  consti- 
tution of  1874  : — 

"Article  19.  The  federal  army  is  composed  : 
(a)  Of  the  regular  troops  of  the  cantons;  (d)  of 
all  citizens  who,  not  belonging  to  these  troops, 
are  nevertheless  liable  to  military  service. 

"  The  control  of  the  army  as  well  as  of  the 
munitions  of  war  provided  by  law  belongs  to  the 
Federation. 

"  In  case  of  danger,  the  Federation  has  also 
the  right  of  direct  and  exclusive  control  over 
men  not  incorporated  in  the  federal  army  and 
all  the  other  military  resources  of  the  cantons. 

"  The  cantons  control  the  military  forces  of 
their  territory,  in  so  far  as  this  right  is  not  lim- 
ited by  federal  laws  or  the  constitution. 

"Article  20.  Laws  relating  to  the  organiza- 
tion of  the  array  emanate  from  the  Federation. 
The  military  laws  in  the  cantons  are  executed 
within  the  limits  prescribed  by  federal  legisla- 
tion and  under  the  surveillance  of  the  Federa- 
tion, by  means  of  the  cantonal  authority. 

"  It  belongs  to  the  Federation  to  provide 
arms  and  all  military  instruction. 

"  It  belongs  to  the  cantons  to  furnish  and 
maintain  the  clothing  and  equipment.  The 
cantons  are,  however,  reimbursed  for  the  ex- 
pense, in  accordance  with  rules  established  by 
federal  legislation. 


THE   ARMY  AND   THE   FINANCES.  1 93 

"Article  21.  In  so  far  as  it  is  not  in  opposi- 
tion to  military  considerations  the  several  corps 
should  be  formed  from  soldiers  from  the  same 
canton. 

"  The  composition  of  these  corps,  the  care  of 
maintaining  their  effectiveness,  the  nomination 
and  promotion  of  their  officers,  belong  to  the 
cantons,  under  the  limitations  of  the  general 
prescriptions  which  are  sent  to  them  by  the 
Federation. 

"Article  22.  For  an  equitable  indemnity,  the 
Federation  may  use  or  purchase  all  arsenals 
and  buildings  with  their  belongings  intended  for 
military  purposes. 

"The  conditions  of  the  indemnity  shall  be 
regulated  by  federal  legislation." 

Since  the  adoption  of  these  constitutional 
provisions,  the  federal  legislature  has  established 
the  details  of  the  military  organization.  From 
these  provisions  it  is  seen  that  the  military  sys- 
tem as  a  whole  has  fallen  under  the  authority  of 
the  Union.  The  cantons  have  to  do  only  with 
the  formation  of  the  several  corps,  and  even 
here  their  activity  is  determined  by  regulations 
proceeding  from  the  Federation.  Yet  under 
these  regulations  the  functions  of  the  cantons 
are  important.  At  the  expense  of  the  Federa- 
tion, they  care  for  the  clothing  and  equipment 
of  the  troops,  and  exercise  control  over  their 
13 


194        GOVERNMENT  OF    SWITZERLAND. 

own  troops,  in  so  far  as  their  power  in  this  re- 
gard is  not  limited  by  the  federal  constitution 
and  laws.  The  regular  federal  troops  or  Bundes- 
auszug  consists  of  those  liable  to  military 
duty  between  twenty  and  thirty  two  years  of 
age,  of  which,  in  January,  1887,  there  were  120,- 
393.  The  Landwehr  embraces  those  between 
the  ages  of  thirty-two  and  forty-five,  numbering 
about  82,000.  By  a  law  which  went  into  force 
in  1887  the  Landsturm  was  organized,  and 
made  to  consist  of  retired  officers  under  fifty- 
five  years  of  age,  retired  non-commissioned  of- 
ficers and  privates  under  fifty,  and  all  between 
forty  and  fifty  who  are  not  in  the  Landwehr,  as 
well  as  all  able-bodied  young  men  between  seven- 
teen and  twenty.  It  is  supposed  that  the  Land- 
sturm will  add  about  300,000  men  to  the  ef- 
fective force  of  the  republic. 

In  order  that  the  Federation  may  make  use 
of  this  force  and  support  the  political  organi- 
zation, it  must  be  provided  with  a  revenue. 
This,  according  to  the  constitution,  is  derived 
from  federal  property,  from  customs  duties,  from 
the  post  and  the  telegraph,  from  a  monopoly  in 
making  and  selling  powder,  from  half  of  the 
gross  product  of  the  tax  for  military  exemptions 
collected  by  the  cantons,  and  from  the  contri- 
butions of  the  cantons,  which  are  regulated  by 
federal  legislation,  with  special  reference  to  the 


THE  ARMY   AND   THE   FINANCES.         I95 

wealth  and  taxable  property  of  the  cantons. 
The  first  item  in  the  list  of  sources,  namely,  fed- 
eral property,  represents  no  real  source  of  in- 
come, inasmuch  as  any  returri  which  it  may 
yield  is  more  than  offset  by  the  interest  on  the 
federal  debt  of  36,670,616  francs.  From  the 
customs  duties  is  derived  the  main  support.  It 
was  estimated  that  of  the  52,527,000  francs  de- 
manded for  the  budget  for  1887,  the  customs 
duties  and  postal-telegraph  service  would  yield 
44,435,200  francs. 

In  the  government  monopoly  of  the  manu- 
facture of  gunpowder,^  the  Federation  has  shown 
a  determination  to  engage  directly  in  the  busi- 
ness of  production.  The  same  determination  is 
shown  also  in  the  constitutional  amendment  of 
October  25,  1885,  and  the  legislation  had  under 
the  provisions  of  this  amendment.  By  this 
amendment  the  Federation  is  authorized  to  make 
provision,  by  law,  concerning  the  manufacture 
and  sale  of  distilled  liquors.  "  The  net  revenues 
derived  from  the  taxation  of  the  sale  of  dis- 
tilled liquors  accrue  to  the  cantons  in  which  the 
liquors  are  sold.  The  net  revenues  of  the  Fed- 
eration, derived  from  the  inland  manufacture 
and  from  the  corresponding  duties  upon  the  im- 
portation of  distilled  liquors,  are  distributed 
amon^  all    the  cantons    in  proportion  to  their 

1  Swiss  Federal  Constitution,  Art.  41. 


196        GOVERNMENT  OF   SWITZERLAND. 

population.  Of  these  revenues  the  cantons  must 
devote  at  least  ten  per  cent  to  the  suppression 
of  alcoholism." 

Under  the  provisions  of  this  constitutional 
amendment,  was  passed  the  Spirit  Monopoly 
Bill  of  1886.  This  bill,  having  passed  the  Fed- 
eral Assembly,  was  submitted  to  a  popular 
vote  on  the  petition  of  48,255  citizens.  The 
popular  vote  confirmed  the  law,  which  provides, 
in  substance,  as  follows  : — 

"  The  Federation  has  the  exclusive  right  to 
manufacture  and  import  distilled  liquors.  Ap- 
proximately a  quarter  of  the  necessary  supply  is 
obtained  by  contracts  with  inland  producers. 
The  distilled  liquors  are  sold  for  cash  by  the 
Federation  in  quantities  of  at  least  150  litres. 
The  price  is  fixed  from  time  to  time  by  the 
Federal  Council.  It  shall  not  amount  to  less 
than  120  francs  nor  more  than  150  francs  per 
hectolitre  of  pure  alcohol.'  The  sale  of  distilled 
liquors  in  quantities  of  at  least  forty  litres  is  a 
business  free  to  all;  but  trade  in  smaller  quan- 
tities is  subject  to  a  license  on  the  part  of  the 
cantonal  authorities,  and  must  pay  to  the  can- 
tons, according  to  the  amount  of  the  transactions, 
a   tax   on  sales,  fixed  by  the  cantons  until  the 

^  "  Denaturalized  spirits,  that  is,  alcohol  so  treated  as  to  pre- 
vent its  use  in  the  manufacture  of  beverages,  are  sold  at  cost  price 
for  technical  and  household  purposes." 


THE   ARMY   AND   THE   FINANCES.         I97 

passage  of  a  federal  law.  The  net  profits  of  the 
administration  of  the  federal  monopoly  are 
divided  among  the  several  cantons  in  propor- 
tion to  the  population."  '  In  many  other  de- 
partments of  production  the  direct  agency  of  the 
Federation  is  manifest,  but  none  of  these  under- 
takings is  important  as  a  source  of  revenue. 
From  the  monopoly  of  the  manufacture  and  sale 
of  gunpowder  there  is  realized  about  500,000 
francs  annually. 

The  military  tax  is  imposed  upon  every  Swiss 
citizen  of  the  age  of  military  liability,  living 
within  or  without  the  territory  of  the  Feder- 
ation, and  who  does  not  personally  perform 
military  service.  "  Foreigners  established  in 
Switzerland  are  likewise  subject  to  this  tax,  un- 
less they  are  exempt  therefrom  by  virtue  of  in- 
ternational treaties  or  belong  to  a  state  in  which 
the  Swiss  are  neither  liable  to  military  service 
nor  to  the  payment  of  any  equivalent  tax  in 
money."  The  following  classes  of  persons  are 
exempt : — 

"  I.  Paupers  assisted  by  the  public  charity 
fund;  and  those  who  by  reason  of  mental  or 
physical  infirmity  are  incapable  of  earning  their 
subsistence,  or  who  have  not  a  sufficient  fortune 
for  the  support  of  themselves  and  family. 

'  See  Political  Science  Quarterly,  March,  1889,  p.  59,  article 
by  Gustav  Cohn,  on  "  Income  and  Property  Taxes  in  Switzer- 
land." 


198        GOVERNMENT  OF  SWITZERLAND. 

"  2.  Those  rendered  unfit  through  previous 
service. 

"  3.  Swiss  citizens  in  foreign  countries,  if  they 
are  subject  to  a  personal  service,  or  to  an  ex- 
emption tax  for  the  same  in  place  of  domicils. 

"4.  The  railway  and  steamboat  employees 
during  the  time  when  they  are  liable  to  the  mili- 
tary service  organized  for  the  working  of  the 
railways  and  steamboats  in  time  of  war. 

"  5.  Policemen  and  the  federal  frontier  guards. 

*'  The  military  tax  consists  in  a  personal  tax 
of  six  francs  and  of  an  additional  tax  on  property 
and  income,  the  amount  exacted  from  any  one 
taxpayer  not  to  exceed  3,000  francs  per  annum." 
The  additional  tax  is  one  franc  and  a  half  for 
each  one  thousand  francs  of  net  fortune,  and  one 
franc  and  a  half  for  each  one  hundred  francs  of 
net  income.  Net  fortunes  less  than  one  thousand 
francs  are  exempt,  and  from  the  net  income 
there  is  to .  be  deducted  six  hundred  francs. 
Net  fortune  is  the  personal  and  real  property 
after  deducting  debts  of  record,  chattels  neces- 
sary for  household,  tools  of  trade,  and  agricult- 
ural implements.  Real  estate  and  improvements 
are  assessed  at  three-fourths  of  the  market  value. 

"  In  computing  the  property  of  a  person  for 
this  tax,  half  of  the  fortune  of  the  parents,  or,  if 
not  living,  then  of  the  grandparents,  is  included 
proportionally  to  number  of  children  or  grand- 


THE  ARMY   AND   THE   FINANCES.         1 99 

children,  unless  the  father  of  the  taxpayer  shall 
himself  perform  military  service  or  pay  the  ex- 
emption tax. 

"Net  income  embraces:  i.  The  earnings  of 
an  art,  profession,  trade,  business,  occupation, 
or  employment.  The  expenses  incurred  to  ob- 
tain these  earnings  are  deducted,  also  necessary 
household  expenses,  and  five  per  cent  of  the 
capital  invested  in  a  business.  2.  The  product 
of  annuities,  pensions,  and  other  simiUfr  revenues. 

"  From  the  age  of  thirty-three  to  the  com- 
pletion of  the  military  age  only  one-half  of  the 
tax  is  exacted. 

"The  Federal  Assembly  has  the  right  to  in- 
crease the  tax  to  double  the  amount  for  those 
years  in  which  the  greater  part  of  the  elite  troops 
(as  distinguished  from  the  Landwehr  or  reserve) 
are  called  into  active  service. 

"  The  military  tax  for  Swiss  citizens  residing 
abroad  is  calculated  every  year  by  special  rolls 
and  the  persons  advised  by  the  officials  of  the 
canton  of  their  birth.  The  tax  for  exemption  is 
paid  in  the  canton  where  the  taxpayer  is  domi- 
ciled when  the  rolls  are  prepared.  Parents  are 
responsible  for  the  payment  of  the  tax  for  their 
minor  sons  and  for  those  sons  who,  though  of 
age,  remain  a  part  of  their  household. 

"  The  period  for  prescription  is  five  years  for 
taxpayers  present  in  the  country  and  ten  years 


200        GOVERNMENT  OF    SWITZERLAND. 

for  those  absent  from  the  country.  The  cantons 
are  charged  with  making  out  the  annual  rolls 
and  collecting  the  tax.  By  the  end  of  January 
following  the  year  of  the  tax  the  cantons  must 
remit  to  the  Federation  the  half  of  the  net 
product  collected,  a  portion  of  which  is  assigned 
by  the  Federal  Assembly  to  the  fund  for  military 
pensions. 

"  The  estimated  receipts  from  this  tax  for  the 
share  of  the  Federation  is  placed  in  the  budget 
for  the  year  1887  at  1,235,000  francs." 

The  military  exemption  law  has  not  been  ac- 
cepted without  opposition.  Dr.  Dubs  has  criti- 
cised it  very  sharply.  "  The  conception  of  this 
law,"  he  says,  "  is  really  unworthy  of  acceptance. 
If  the  constitutional  principle  of  the  general 
liability  to  military  service  were  in  fact  carried 
out,  such  a  law  would  naturally  have  no  sense, 
and  would  at  most  be  a  tax  on  mental  and  phys- 
ical infirmity,  that  is  to  say,  a  tax  which  must 
be  characterized  as  almost  shameful.  The  whole 
law  has  thus  its  basis  only  in  an  improper 
carrying  out  of  the  constitution.  With  a  more 
correct  carrying  out  of  the  constitution  there 
would  remain  only  taxation  of  those  absent. 
But  those  who  are  away  from  home  in  other 
parts  of  Switzerland  are  now  held  there  to  mili- 
tary service,  and  those  outside  of  Switzerland 
might  at  any  time  be  required  to  return,  in  order 


THE   ARMY   AND   THE   FINANCES.         201 

to  perform  their  military  service  in  person ;  but, 
according  to  all  other  principles  of  our  law  of 
taxation,  we  cannot  properly  speak  of  a  right 
to  tax  those  in  foreign  countries.  The  law  in 
question  is  therefore  in  all  points  equally  irra- 
tional, and,  in  the  construction  of  its  details, 
leads  moreover  to  further  absurdities  of  all  kinds, 
of  which  undoubtedly  the  taxation  of  the  heir's 
possible  expectations  forms  the  highest  point." 

Besides  the  taxes  already  mentioned,  the  Fed- 
eration may  collect  a  fee  of  thirty-five  francs  from 
foreigners  for  granting  them  the  right  to  acquire 
cantonal  and  communal  citizenship.  The  Fed- 
eral Council  may  also  "levy  qn  railway  companies 
a  tax  of  fifty  francs  for  each  kilometer  in  active 
service,  whenever  the  business  of  the  company 
shows  a  net  profit  after  providing  a  suitable 
sinking  fund  of  four  per  cent.  Should  the  prof- 
its exceed  four  per  cent.,  the  tax  may  be  in- 
creased to  a  maximum  of  two  hundred  francs." 
The  Federation  may,  moreover,  collect  from 
banks  one  per  cent  of  the  amount  of  their  issue; 
also  certain  fees  for  registering  trade-marks  and 
commercial  houses.'' 

In    case   the   income  from  these  taxes  shall 
prove   to   be    inadequate  to  federal  needs,  the 
1  Dubs,  n,  230. 

*"  Reports  from  the  Consuls  of  the  United  States,"  Wash- 
ington, 1888,  pp.  618-620. 


202        GOVERNMENT  OF  SWITZERLAND. 

Federation  may  have  recourse  to  contributions 
in  money  by  the  cantons,  which  are  provided  for 
by  the  last  clause  of  Article  42.  These  contri- 
butions were  fixed,  for  twenty  years,  by  the  law 
of  October  7,  1874.  In  assigning  the  amounts 
the  several  cantons  shall  pay,  regard  was  had  to 
the  wealth  and  population  of  the  cantons.  They 
were  divided  into  eight  classes,  which  might  be 
required  tg  pay  10,  15,  20,  30,  40,  50,  70,  and  90 
centimes  per  head  of  the  population.  Hitherto 
it  has  not  been  necessary  for  the  Federation  to 
resort  to  these  contributions. 


CHAPTER  X. 

RIGHTS  AND  PRIVILEGES. 

A  THIRD  aim  of  the  Swiss  federal  constitution  is 
defined  in  Article  2,  as  the  protection  of  the 
liberty  and  rights  of  the  citizens.  Under  the 
pre-revolutionary  confederation,  certain  towns 
and  districts  held  a  subject  relation  to  the  con- 
federated cantons,  but  this  condition  of  things 
was  set  aside  by  the  Revolution,  and  the  Act  of 
Mediation  provided  that  in  Switzerland  there 
should  be  neither  subject  districts  nor  privileges 
of  place,  birth,  persons,  or  families.'  In  the  re- 
actionary movement  after  1814,  certain  political 
privileges  were  conceded  to  important  cities  and 
even  to  distinguished  families;  and  the  articles 
of  alliance  of  181 5  showed  a  departure  from  the 
principles  of  strict  democratic  equality  which 
had  been  embodied  in  the  Act  of  Mediation. 
According  to  the  seventh  section  of  these  articles 

*  "II  n'y  a  plus  en  Suisse  ni  pays  sujets,  ni  priviliges  de  lieux, 
de  naissance,  de  personnes,  ou  de  families."  Act  of  Mediation, 
Art.  3. 

(203) 


204        GOVERNMENT  OF  SWITZERLAND. 

"the  Confederation  embraces  the  principle,  that 
as  since  the  recognition  of  the  twenty  two  can- 
tons there  are  no  longer  subject  lands  in  Switzer- 
land, so  also  the  enjoyment  of  political  rights 
can  never  be  the  exclusive  privilege  of  a  class  of 
the  citizens  of  a  canton."  This  is  clearly  a  less 
strong  and  definite  statement  than  that  of  the 
previous  constitution  which  it  supplants. 

The  movement  of  1830  emphasized  once  more 
the  principle  of  political  equality,  and  prepared 
the  way  for  the  revolution  of  1848.  The  federal 
constitution  adopted  in  this  latter  year  declared : 
"All  Swiss  are  equal  before  the  law.  There  are 
in  Switzerland  neither  subjects,  nor  privileges  of 
place,  birth,  persons,  or  families."  (Article  4.) 
This  article  passed  without  amendment  into  the 
constitution  of  1874.  The  statement  of  the 
principle  of  equality  which  it  contains  is  more 
easily  made  than  the  application  of  it  to  actual 
affairs.  There  are  at  least  two  different  views 
regarding  its  execution.  "In  its  decisions  the 
Federal  Council  has  always  proceeded  with  the 
view  that  equality  before  the  law  could  not  be 
demanded  in  an  absolute  but  only  in  a  relative 
sense,  that  is  to  say,  under  the  presupposition  of 
entirely  equal  actual  relations."  In  a  decision 
rendered  Nov.  29,  1865,  the  Council  affirmed  that 
"  the  fourth  article  of  the  federal  constitution  has 
never  been  conceived  in  the  sense  of  an  absolute 


RIGHTS   AND   PRIVILEGES.  205 

equality  of  all  citizens,  and,  moreover,  cannot 
be  so  construed,  because  the  difference  of  actual 
and  legal  relations  always  produces  inequalities. 
.  .  .  It  is,  therefore,  only  demanded  that  all 
citizens  similarly  situated  shall  be  treated  alike 
and  not  exceptionally."* 

In  apposition  to  this  view,  Ruttimann  urges 
that  "  there  is  no  privilege,  in  excusing  which  it 
may  not  be  affirmed,  that  under  similar  actual 
conditions  everyone  would  participate  in  it. 
The  exception,  that  in  unequal  actual  relations 
legal  equality  cannot  be  demanded,  would  thus 
completely  abolish  the  rule."  "^  He  held,  more- 
over, that  Article  4  referred  to  equality  of  legal 
capacity;  that  men  were  by  nature  equal,  were 
equally  capacitated  by  birth  to  acquire  every 
private  right  and  to  fill  every  public  position.* 

Under  the  earliest  constitutions  the  rights 
and  duties  of  individual  citizens  were  conceived 
with  reference  to  other  citizens  of  the  same  can- 
ton. Later  legislation,  however,  has  aimed  to 
extend  the  limits  within  which  equality  should 
prevail.  Important  in  this  regard  is  the  forty- 
eighth  article  of  the  constitution  of  1848,  repro- 
d\^ed  as  Article  60  of  the  present  constitution 

1  Ruttimann,  II,  139. 
^  Ruttimann,  II,  140. 
'  Ruttimann,  II,  140. 


206        GOVERNMENT  OF   SWITZERLAND. 

which  obliges  every  canton  to  treat  the  citizens 
of  other  cantons  like  its  own  citizens,  in  all  leg- 
islative and  judicial  matters/  This  was  an  in- 
dication of  a  tendency  to  set  aside  the  ancient 
particularism,  and  it  opened  the  way  to  broader 
sympathies  and  the  growth  of  a  national  spirit. 
The  Swiss  had  before  them  in  this  matter 
the  good  example  of  the  United  States,  where 
it  had  already  been  constitutionally  provided 
that  "  the  citizens  of  each  State  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in 
the  several  States."'^  A  similar  doctrine  was 
more  definitely  set  forth  later  in  the  imperial 
constitution  of  Germany.  According  to  Article 
3,  "  there  is  one  citizenship  for  all  Germany, 
and  the  citizens  or  subjects  of  each  State  of  the 
Federation  shall  be  treated  in  every  other  State 
thereof  as  natives,  and  shall  have  the  right  of 
becoming  permanent  residents,  of  carrying  on 
business,  of  filling  public  offices,  of  acquiring 
real  estate  and  citizenship  of  the  several  States, 
and  may  acquire  all  civil  rights  on  the  same  con- 
ditions as  those  born  in  the  State,  and  shall 
also  have  the  same  usage  as  regards  civil  prose- 
cutions and  the  protection  of  the  laws."  » 

^  "  Tous  les  Cantons  sont  obliges  de  trailer  les  citoyens  des 
autres  Etats  conf6d6  r6s  comme  ceux  de  leur  Etat  en  moti^re  de 
legislation  et  pour  tout  ce  qui  concerne  les  voies  juridiques." 
Article  60  • 

*  U.  S.  Constitution,  Art.  4,  Sec.  2. 


RIGHTS  AND   PRIVILEGES.  20/ 

The  liberal  manner  in  which  the  several  can- 
tons at  present  treat  a  citizen  of  another  canton  is 
in  marked  contrast  with  that  of  earlier  centuries, 
when  the  citizen  of  any  canton  was  regarded  and 
treated  as  a  foreigner  in  any  other  canton.  Under 
the  Act  of  Mediation  the  citizen  of  any  canton 
might  take  up  his  residence  in  another  canton, 
and  acquire  there  political  rights ;  but  he  could  not 
enjoy  political  rights  in  two  cantons  at  the  same 
time.  The  constitution  of  1815,  however,  left 
each  canton  free  to  determine  for  itself  the  con- 
ditions under  which  persons  from  without  could 
settle  and  gain  citizenship.  With  the  adoption  of 
the  constitution  of  1848,  a  general  law  govern- 
ing this  matter  was  established,  which  with  cer- 
tain modifications  has  been  retained  in  the  exist- 
ing constitution.  It  provides  that  every  Swiss 
citizen  has  the  right  to  settle  anywhere  within 
the  limits  of  Swiss  territory,  on  condition  of 
producing  a  certificate  of  former  residence. 
But  the  right  of  settlement  may  be  refused  or 
withdrawn  from  those  who,  in  consequence  of  a 
penal  judgment,  are  no  longer  in  the  enjoyment 
of  their  civil  rights.  It  may,  moreover,  be  with- 
drawn from  those  who  have  been  repeatedly 
punished  for  grave  offenses,  as  also  from  those 
who  have  come  to  depend  permanently  on  pub- 
lic charity  for  their  support. 

Citizenship  in    Switzerland    is   primarily  an 


208        GOVERNMENT  OF   SWITZERLAND. 

affair  of  the  commune,  from  which  is  developed 
citizenship  in  the  canton.  Through  this  latter 
we  reach  the  broader  conception  of  citizenship 
in  the  Federation.  This  last  follows  as  a  legal 
consequence  of  citizenship  in  a  canton,  for 
"  every  citizen  of  a  canton  is  a  Swiss  citizen."  ' 
The  lines  of  distinction  between  these  3everal 
conceptions  are,  however,  not  clearly  presented 
even  to  the  minds  of  the  Swiss  themselves. 
The  want  of  clearness  is  owing  in  part  to  the 
presence  of  a  double  conception  embracing  the 
view  of  passive  citizenship,  in  which  the  sub- 
ject is  maintained  in  the  enjoyment  of  certain 
civil  rights,  and  that  of  active  citizenship,  under 
which  the  subject  is  endowed  with  certain  polit- 
ical privileges.  To  quote  from  a  Swiss  writer, 
"  the  national  citizenship  proceeds  from  below ; 
political  active  citizenship  is  derived  from  above, 
proceeding  from  the  Federation  and  from  this 
source  descending  to  the  canton  and  the  com- 
mune of  residence."*  The  Swiss  citizen,  hav- 
ing shown  his  right  of  suffrage,  may  take  part, 
in  the  place  where  he  has  acquired  a  residence, 
in  all  votes  and  elections  concerning  federal  af- 

^  Article  43;  "Der  Besitz  des  schwiezerischen  Biirgerrechtes 
hangt  von  demjenigen  eines  Kantonsbilrgerrechtes  ab,  wie 
letzterer  hinwieder  in  der  Regel  denjenigen  eeies  Gemeinds- 
bilrgerrechtes  vorausetzt. "    Blumer,  I,  330. 

*  Dubs,  ' '  Das  Oeffentliche  Recht  der  schweizerischen  Eidge- 
nossenschaft,"  II,  11, 


RIGHTS  AND   PRIVILEGES.  209 

fairs;  but  he  cannot  exercise  political  rights  in 
more  than  one  canton.  Coming  from  any  part 
of  the  Federation  and  taking  up  his  resi- 
dence in  any  canton,  he  enjoys  in  his  place  of 
settlement  all  the  rights  of  a  citizen  of  the  can- 
ton, and  with  these  also  all  the  rights  of  a  citi- 
zen of  the  commune.  He  is,  however,  excluded 
from  participating  in  the  common  property  of 
the  citizens  and  the  corporations,  as  well  as 
from  voting  on  purely  municipal  affairs,  unless 
it  has  been  otherwise  decided  by  cantonal  leg- 
islation. He  obtains  the  right  of  voting  on 
cantonal  and  municipal  affairs  after  a  residence 
of  three  months.  This  is  a  material  limitation 
of  the  period  of  residence  previously  required 
for  this  purpose.  Under  the  constitution  of 
1848,  there  might  be  required  of  Swiss  citizens 
settling  in  a  canton  a  residence. of  two  years  as 
a  condition  of  voting  on  cantonal  affairs,  and 
they  were  entirely  excluded  from  the  right  of 
voting  on  the  affairs  of  a  commune.  In  order 
that  no  limitations  of  this  extended  liberty  may 
be  made  through  cantonal  legislation  without 
the  consent  of  the  supreme  authority,  it  is  pro- 
vided that  cantonal  laws  concerning  settlement 
and  the  electoral  rights  which  citizens  acquiring 
residence  in  a  canton  may  enjoy  in  communal 
affairs  must  be  submitted  for  the  sanction  of 
the  Federal  Council.' 
*  Article  43. 
14 


2IO        GOVERNMENT  OF    SWITZERLAND. 

With  respect  to  civil  rights,  settlers  in  any 
canton  stand,  as  a  rule,  under  the  laws  of  their 
place  of  residence.  The  application  of  this  law 
is  under  the  direction  of  the  federal  authorities, 
through  which  also  measures  are  taken  to  pre- 
vent the  same  property  or  income  from  being 
taxed  in  two  cantons  at  the  same  time.* 

By  Article  48  it  is  decreed  that  a  federal  law 
shall  establish  provisions  respecting  the  care  and 
burial  of  poor  inhabitants  of  one  canton,  who 
have  fallen  sick  or  died  in  another  canton.  The 
federal  law  called  for  in  this  article  was  passed 
in  June,  1875.  It  ordered  that  the  authorities  of 
the  place  in  which  the  sickness  or  the  death  oc- 
curred should  provide  care  for  the  sick  and 
burial  for  the  dead  without  being  allowed  to  de- 
mand compensation  from  the  home  canton  of 
the  victim.^ 

It  is  noteworthy  that  Swiss  citizenship  once 
held  is  much  less  easily  lost  or  set  aside  than 
that  of  most  other  nations.  In  this  matter  the 
federal  constitution  determines  the  conduct  of  the 
cantons.  In  order  to  prevent  the  increase  of 
the  unsettled  class,  the  constitution  of  1848  in- 
terdicted a  canton  from  depriving  a  citizen  of 
his  citizenship.  This  provision  is  strengthened 
in  Article  44  of  the  present  constitution,  wherb 

*  Article  46. 

'■'  Von  Orelli,  p.  70. 


RIGHTS  AND   PRIVILEGES.  211 

it  is  declared  that  no  canton  may  banish  one  of 
its  citizens  from  its  territory,  or  deprive  him  of 
his  citizenship.  "  Federal  legislation  shall  de- 
termine the  conditions  under  which  foreigners 
may  be  naturalized,  as  also  those  under  which  a 
Swiss  may  renounce  his  citizenship  in  order  to 
obtain  naturalization  in  a  foreign  country."  ^ 
The  doctring  of  the  laws  that  have  been 
enacted  on  this  point  as  interpreted  by  the 
Federal  Council  has  been  summed  up  as 
follows:  "  Swiss  citizenship  is  imprescriptible; 
every  Swiss  retains  his  citizenship  as  long  as  he 
himself  does  not  renounce  it,  and  as  long  as  its 
legally  valid  derivation  can  be  .shown.  The 
mere  fact  of  the  acquisition  of  citizenship  in  a 
foreign  state  is  not  adequate  to  cause  the  loss  of 
citizenship  of  a  canton  which  one  enjoys;  nor  is 
adequate  to  this  end  a  long  absence  in  a  foreign 
country,  even  when  the  person  concerned  has 
neither  fulfilled  his  military  duty  nor  paid  taxes; 
nor,  moreover,  the  entrance  into  foreign  civil  or 
military  service.  Rather  for  the  loss  of  can- 
tonal citizenship  there  is  required  a  formal  and 
express  voluntary  declaration.  This  declara- 
tion is  then  valid  for  all  minor  children.  But  in 
order  to  make  a  valid  renunciation  of  citizenship 
of  a  canton,  proof  of  the  acquisition  of  citizen- 

'  Article  44. 


212        GOVERNMENT   OF    SWITZERLAND. 

ship  in  another  state   or  canton  must   be   fur- 
nished.'" 

Conspicuous  among  the  rights  and  privileges 
that  have  been  acquired  by  the  Swiss  is  the 
right  of  worshiping  in  any  manner  approved 
by  the  conscience  of  the  worshiper.  The  prog- 
ress of  enlightenment  in  Switzerland  which  this 
privilege  represents  is  fully  appreciated  only 
when  viewed  in  contrast  with  the  ecclesiastical 
narrowness  and  sectarian  antagonisms  of  earlier 
centuries.  It  is,  moreover,  one  of  the  later 
achievements  in  liberty.  As  late  as  the  war 
of  the  Sonderbund,  religious  intolerance  ap- 
peared to  threaten  the  integrity  of  the  Confed- 
eration; and  under  the  constitution  of  1848  tol- 
eration was  extended  to  only  two  sects,  the 
Roman  Catholic  and  the  Reformed.  Through 
the  constitution  of  1874,  however,  a  far  more 
liberal  attitude  was  assumed.  In  Articles  49  to 
52  inclusive  are  set  forth  the  foundations  of  re- 
Ijgious  liberty  in  so  far  as  this  has  been  achieved 
in  Switzerland. 

1  Blumer,  I,  333.  In  1885  "the  Federal  Council  refused  to 
conclude  a  treaty  of  reciprocal  naturalization  with  the  United 
States  of  America,  because  of  the  clause  stipulating  that  the 
Swiss  who  should  obtain  the  rights  of  Americans,  should  lose 
their  primitive  rights  as  Swiss.  This  is  contrary  to  the  Swiss 
constitution,  which  declares  that  no  Swiss  citizen,  unless  he 
fights  against  his  country,  can  ever  lose  his  original  rights." 
— Annual  Register  188s,f.  286. 


RIGHTS  AND  PRIVILEGES.  213 

"Liberty  of  belief  and  conscience  is  inviolable. 
No  one  can  be  forced  to  take  part  in  a  religious 
association,  to  follow  a  religious  teaching,  to 
perform  a  religious  act,  or  to  undergo  penalties 
of  any  kind  whatsoever,  on  account  of  religious 
opinion.  The  person  who  exercises  paternal  or 
tutelary  authority  has  the  right  to  determine 
the  religious  education  of  the  children,  in  accord- 
ance with  the  foregoing  principles,  until  the  age 
of  sixteen  years.  The  exercise  of  civil  or  polit- 
ical rights  cannot  be  limited  by  any  prescrip- 
tions or  conditions  whatsoever  of  a  religious  or 
ecclesiastical  nature.  No  one  on  account  of  re- 
ligious opinion  is  released  from  the  performance 
of  civil  duties.  No  one  is  required  to  pay  taxes 
which  are  specially  devoted  to  the  peculiar  ex- 
penses of  the  worship  of  a  religious  community 
to  which  he  does  not  belong.  The  final  execu- 
tion of  this  principle  is  reserved  to  federal  legis- 
lation. 

"  Freedom  of  worship  is  guaranteed  within 
limits  compatible  with  public  order  and  good 
morals.  The  cantons  and  the  Federation  may 
take  such  measures  as  are  necessary  to  preserve 
public  order  and  peace  among  the  members 
of  the  different  religious  communities;  as  also 
against  the  encroachments  of  the  ecclesiastical 
authorities  upon  the  rights  of  the  citizens  or  of 
the  state.     Contests  under  public  or  private  law 


214        GOVERNMENT  OF    SWITZERLAND. 

arising  from  the  creation  of  religious  communi- 
ties, or  from  the  separation  of  religious  communi- 
ties already  existing,  may  be  taken  for  decision 
before  the  competent  federal  authorities.  Bish- 
oprics may  not  be  created  on  Swiss  territory 
without  the  consent  of  the  Federation. 

"The  order  of  Jesuits  and  the  societies  affil- 
iated with  them  cannot  be  admitted  into  any 
part  of  Switzerland,  and  all  activity  in  the 
church  and  school  is  prohibited  to  their  mem- 
bers. This  interdiction  may  also  be  extended, 
by  way  of  federal  decree,  to  other  religious  or- 
ders, whose  activity  is  dangerous  to  the  state,  or 
disturbs  the  peace  among  the  sects. 

"It  is  prohibited  to  found  new  convents  or  re- 
ligious orders,  and  to  re-establish  those  which 
have  been  suppressed." 

Under  the  old  order  of  things,  while  the  can- 
tons controlled  the  legislation  respecting  mar- 
riage, the  liberty  of  individual  citizens  in  this 
regard  was  limited  by  property,  residence,  and 
religious  conditions.  At  present,  however,  "the 
right  of  marriage  stands  under  the  protection 
of  the  Federation.  No  obstacle  to  marriage 
can  be  based  upon  religious  motives,  upon 
the  indigence  of  one  party  or  the  other,  upon 
their  previous  conduct,  or  upon  any  other  motive 
whatsoever  recognizable  by  the  police.  A  mar- 
riage concluded  in  any  canton  or  in  a  foreign 


RIGHTS   AND   PRIVILEGES.  21$ 

country,  in  accordance  with  the  laws  there  in 
force,  will  be  recognized  as  valid  throughout  the 
Federation.  A  woman  acquires  by  marriage 
the  residence  rights  of  her  husband.  Children 
born  before  marriage  are  rendered  legitimate  by 
the  subsequent  marriage  of  their  parents."  ^ 
Certain  fees  or  taxes  that  were  previously  im- 
posed upon  the  contracting  parties  are,  by  the 
present  constitution,  made  illegal.  Legislation 
under  these  constitutional  provisions  was  had  De- 
cember 24,  1874.  Among  other  things,  it  estab- 
lished the  details  of  the  conditions  under  which 
marriages  might  be  contracted,  and  also  the 
conditions  under  which  marriages  might  be  de- 
clared void  and  divorces  granted.'^  By  making 
marriage  and  divorce  subjects  of  federal  rather 
than  of  State  legislation,  Switzerland  has  taken 
a  step  in  advance  of  the  position  at  present  oc- 
cupied by  the  United  States. 

The  views  of  the  Swiss  at  different  times  with 
respect  to  the  liberty  of  the  press  show  the 
growth  of  a  sentiment  favorable  to  the  enlarge- 
ment of  federal  authority.  In  the  projected 
constitutional  reform  of  1833,  it  was  proposed 
that  the  press  should  stand  entirely  under  can- 
tonal legislation,  and  the  Union  should  be  able 
neither  to  abolish  nor  to  limit  its  freedom,  nor  to 

'  Article  54. 

2  piumcr,  I,  381-391. 


2l6         GOVERNMENT   OF    SWITZERLAND. 

introduce  a  censorship  of  the  press.  "In  the 
commission  of  1848  for  the  revision  of  the  con- 
stitution it  was  at  once  recognized  that  this  pro- 
vision was  insufficient;  it  was  seen  to  be  needed, 
on  the  one  hand,  that  the  freedom  of  the  press 
should  be  guaranteed  by  the  Union;  on  the 
other  hand,  that  the  Union  should  have  the 
right  to  take  action  in  opposition  to  abuses  di- 
rected against  itself" '  The  outcome  of  the  dis- 
cussion was  the  formation  of  Article  45,  of  the 
constitution  of  1848,  which  is  retained  unchanged 
in  the  existing  constitution:  "The  freedom  of 
the  press  is  guaranteed.  With  reference  to  the 
abuse  of  this  freedom,  the  cantonal  legislation 
shall  embrace  the  necessary  provisions,  which, 
however,  require,  the  approval  of  the  Federal 
Council.  The  Federation  has  the  right  to  es- 
tablish penalties  to  repress  the  abuses  of  the  lib- 
erty of  publication,  which  are  directed  against 
itself  or  its  authorities."* 

Under  this  law  it  is  not  permitted  to  establish 
a  preliminary  censorship ;  to  subject  the  press  to 
administrative  discretion;  to  makaan  exception, 
to  the  disadvantage  of  the  press,  to  the  generally 
accepted  penal  rules;  to  set  up  for  the  crimes  of 
the  press  another  court  than  that  of  the  place  of 
publication  or  of  the  residence  of  the  accused; 

•  Blumer,  I,  391. 
»  Article  55. 


RIGHTS   AND   PRIVILEGES.  2iy 

or  to  suppress  completely  a  newspaper  or  other 
periodical/  It  is,  moreover,  to  be  observed  that 
cantonal  laws  with  reference  to  the  press  are  not 
operative  until  they  have  received  the  sanction 
of  the  Federal  Council,  a  provision  which  is  not 
universally  approved  among  Swiss  publicists. 
It  is  held  by  some  that  it  would  be  a  better  ar- 
rangement for  controlling  the  press,  if  the  whole 
matter  were  placed  directly  under  the  authorities 
of  the  Union. 

The  freedom  of  the  press  is  scarcely  more  im- 
portant for  the  achievement  and  maintenance  of 
political  liberty  than  the  right  to  form  associa- 
tions. Of  this  latter  topic  it  was  at  first  pro- 
posed to  make  no  mention  in  the  constitution 
of  i848.-  Through  the  influence  of  Zurich  and 
Luzern,  however,  it  was  finally  determined  to 
guarantee  this  right  under  certain  limitations. 
To  this  end,  therefore,was  formulated  Article  46, 
of  the  constitution  of  1848,  which  was  retained 
as  Article  56,  of  the  constitution  of  1874.  It 
decrees  that  "  the  citizens  have  the  right  to  form 
associations,  provided  there  is  nothing  illegal,  or 
dangerous  to  the  state,  in  the  end  of  these  as- 
sociations or  in  the  means  which  they  employ."  * 
It  decrees,  moreover,  that  whatever  measures 
are   necessary  for   the  repression  of  abuses   un- 

'  Von  Orelli,  72, 
"Article  56. 


2l8        GOVERNMENT  OF    SWITZERLAND. 

der  this  right  shall  be  provided  by  cantonal 
legislation.  In  commenting  on  this  article, 
Blumer  emphasizes  the  fact  that  the  constitution 
does  not  guarantee  an  absolute  right  of  forming 
associations  any  more  than  absolute  freedom 
of  the  press.  The  evident  design  here  was  to 
impose  greater  restrictions  than  were  laid  on 
the  press,  in  fact,  to  prohibit  at  once  all  associa- 
ations  "  whose  existence  and  activity  appear  in- 
compatible with  political  order. "  '  It  is  to  be 
observed,  moreover,  that  the  right  of  association 
is  guaranteed  only  to  Swiss  citizens,  and  not  to 
foreigners  residing  in  Switzerland.  In  impos- 
ing penalties  the  cantons  exercise  in  respect  to 
associations  more  extensive  powers  than  with 
respect  to  the  press;  for  the  penal  laws  of  the 
cantons  concerning  associations  do  not  require 
federal  sanction  in  order  to  become  operative. 
The  principle  of  this  act,  however,  does  not  per- 
mit all  cantons  to  exclude  arbitrarily  all  asso- 
ciations from  their  territories,  and  thus  defeat 
the  intention  of  the  law.  In  contrast  to  the 
liberty  of  the  press  and  of  association,  the  right 
of  petition  is  guaranteed  without  limitation. 

It  has  been  properly  regarded  as  one  of  the 
privileges  of  a  free  citizen  that  he  should  not  be 
tried  except  before  the  court  of  his  place  of  res- 
idence.    In  keeping  with  this  idea  the  federal 

'  Jilymer,  I,  403. 


RIGHTS  AND   PRIVILEGES.  219 

constitution  has  provided  that  "  the  solvent 
debtor  who  has  a  fixed  residence  in  Switzerland 
must  be  tried  on  account  of  personal  claims  be- 
fore the  judge  of  his  place  of  residence,  and 
therefore  his  property  cannot  be  seized  or  se- 
questered outside  of  the  canton  where  he  lives, 
for  the  satisfaction  of  personal  claims,"  Article 
58  carries  the  judicial  restrictions  still  further, 
and  provides  that  "  no  one  shall  be  withdrawn 
from  his  constitutional  judge,"  or,  as  stated  in 
the  French  text,  "  from  his  natural  judge."  By 
this  it  is  proposed  to  regulate  the  judicial  af- 
fairs within  the  several  cantons.  In  the  cantonal 
constitutions  the  competence  of  the  judicial 
officers  is  usually  defined,  and  "  for  every  in- 
habitant of  the  canton  the  court  is  determined 
under  whose  jurisdiction  he  stands  in  both  civil 
and  criminal  matters." '  The  constitutional 
judge  is,  therefore,  the  one  provided  by  the 
terms  of  the  judicial  constitution,  and  an  ex- 
ceptional court  is  one  created  after  the  appear- 
ance of  the  case  to  be  judged.''  It  is,  then,  the 
purpose  of  the  federal  constitution,  in  the  first 
place,  to  provide  against  the  arbitrary  removal 
of  cases  from  those  courts  where  they  "  natu- 
rally" o.r  "  constitutionally"  belong ;  in  the  second 
place,  to  increase  the  security  of  the  accused  by 

'  Blumer,  I,  445. 
*Von  Orelli,  73. 


220        GOVERNMENT  OF    SWITZERLAND. 

the  constitutional  prohibition  of  the  introduc- 
tion of  exceptional  courts.  The  first  clause  of 
this  article  (58)  is  a  reproduction  of  Article  53, 
of  the  constitution  of  1848,  with  a  single  verbal 
change.  The  second  clause,  however,  abolish- 
ing ecclesiastical  jurisdiction,  appears  first  in 
the  constitution  as   amended  in  1874.' 

Prior  to  1848  the  penal  legislation  of  Switzer- 
land was  in  the  hands  of  the  cantons.  The 
federal  constitution  adopted  in  that  year  made 
the  first  limitation  on  the  power  of  the  cantons 
in  this  regard.*  It  ordered  that  no  death  sentence 
should  be  pronounced  on  account  of  political 
crimes.  In  the  constitutional  revision  of  1874, 
it  was  proposed,  in  the  first  place,  to  make  this 
prohibition  general,  and,  in  the  second  place,  to 
forbid  the  confiscation  of  property  on  account 
of  political  offenses.  The  second  proposition 
was  rejected ;  but  the  first,  providing  for  the 
complete  abolition  of  capital  punishment,  was 
adopted,  and  became  the  first  clause  of  Article 
65.  This  article  decreed,  moreover,  (i)  that 
in  time  of  war  the  provisions  of  the  military 
penal  code  should  remain  intact;  (2)  that  cor- 
poral punishment  should  be  prohibited.  This 
was  evidently  a  benevolent  experiment  in  legis- 
lation on  the  part  of  the  Federation ;  but  at  the 

'The  clause  here  referred  to  is:  "La  juridiction  eccWsias- 
tique  estabolie." 


RIGHTS   AND    PRIVILEGES.  221 

same  time  it  was  an  unwarrantable  interference 
in  the  affairs  of  the  cantons.  The  death  penalty 
was  abolished,  but  no  adequate  substitute  was 
provided,  and  subsequent  events  failed  to  justify 
this  extreme  liberality.  In  1879,  therefore,  this 
article  was  again  modified.  It  was  made  to 
prohibit  capital  punishment  for  political  offenses, 
and  corporal  punishment  under  all  circumstances; 
but  it  left  the  several  cantons  free  to  reintroduce 
the  death  penalty  for  other  than  political  crimes, 
and  this  several  of  them  have  already  done. 

One  of  the  results  of  the  early  Swiss  unions 
was  the  establishment  of  free  trade  between  the 
districts  or  cities  united.  The  Act  of  Mediation 
guaranteed  "la  libre  circulation  des  denr^es, 
bestiaux  et  marchandises;"  and  the  alliance  of 
1 81 5  provided  for  like  freedom  with  respect  to 
provisions,  products  of  the  soil,  and  the  wares 
of  merchants,  and  also  that  these  articles  and 
cattle  might  be  freely  exported  or  transported 
from  one  canton  to  another,  subject  only  to 
proper  police  regulations.^  In  the  constitution 
of  1848  these  provisions  from  181 5  were  repro- 
duced subject  to  certain  reservations: — 

1.  The  royalty  on  the  purchase  and  sale  of 
powder  and  salt. 

2.  Police  regulations  of  the  cantons  with  re- 

*  Article  II. 


222        GOVERNMENT  OF    SWITZERLAND. 

spect  to  the  carrying  on  of  trade  and  industry, 
and  the  use  of  the  roads. 

3.  Regulations  against  injurious  forestaljing. 

4.  Transitory  sanitary-police  regulations  in 
case  of  epidemic  diseases. 

5.  Dues  imposed  or  recognized  by  the  Diet, 
which  the  Union  has  not  abolished. 

6.  The  tax  on  the  consumption  of  wine  and 
other  alcoholic  drinks,  provided  for  by  a  sub- 
sequent article  of  the  constitution. 

The  regulations  referred  to  under  i  and  2 
were  to  affect  alike  the  citizens  of  the  differ- 
ent cantons,  and  before  they  could  be  lawfully 
carried  out  they  had  to  be  laid  before  the  Fed- 
eral Council  and  receive  its  approbation. 

The  provisions  here  set  forth  and  interpreted 
by  the  later  action  of  the  federal  authorities  were, 
in  all  essential  particulars,  embodied  in  the  con- 
stitution of  1874;  the  freedom  of  trade  and  in- 
dustry was  guaranteed  throughout  the  extent 
of  the  Federation ;  and  the  regulations  involved 
in  the  reservations  were  not  permitted  to  inter- 
fere with  the  principle  of  commercial  and  indus- 
trial freedom.  According  to  Article  33,  of  the 
present  constitution,  however,  it  remained  for 
the  cantons  to  make  the  exercise  of  the  liberal 
professions  dependent  on  the  proof  of  qualifi- 
cation; but  at  the  same  time  it  devolved  upon 


RIGHTS  AND  PRIVILEGES.  223 

the  Union  to  make  these  proofs  of  qualification 
valid  for  the  whole  Federation. 

"Besides  the  fundamental  rights  of  Swiss  citi- 
zens established  by  the  federal  constitution,  the 
Federation  guarantees  also  all  political  and  in- 
dividual rights  which  exist  under  the  cantonal 
constitutions.  The  latter  and  the  rights  of  the 
nation  and  individual  citizens  derived  from 
them,  as  also  the  authority  of  the  ofificers,  stand, 
according  to  Article  5,^  under  the  powerful  pro- 
tection of  the  Federation.  According  to  the 
seventh  clause  of  Article  85,  regulations  which 
have  as  their  purpose  to  guarantee  the  cantonal 
constitutions  fall  within  the  jurisdiction  of  the 
Federal  Assembly,  and  according  to  the  third 
clause  of  Article  102,  it  remains  with  the  Federal 
Council  to  supervise  this  guarantee.  On  the 
first  occasion  which  presented  itself,  the  Federal 
Council  issued  the  following  statement  regarding 
the  position  which  the  federal  authorities  have  to 
assume  with  respect  to  complaints  made  to 
them : — 

"When  complaints  are  made  regarding  the 
violation  of  the  constitution  in  a  canton,  and 
these  are  brought  before  the  federal  authorities, 

'  "La  Confederation  garantit  anx  cantons  leiir  territoire,  leur 
souverainett?  dans  les  limites  fix^es  par  I'article  3,  leurs  consti- 
tutions, la  liberty  et  les  droits  du  peuple,  les  droits  constitu- 
tionnels  des  citoyens,  ainsi  que  les  droits  et  les  attributions  que 
le  peuple  a  conft;r6s  aux  autorit^s."    Art.  5. 


224        GOVERNMENT  OF    SWITZERLAND. 

the  latter  become  in  duty  bound  to  investigate 
them  and  to  form  a  decision  as  to  their  founda- 
tion or  want  of  foundation,  and  as  to  necessary 
further  regulations.  For  the  Federation  guar- 
antees the  constitutional  rights  of  the  citizen  as 
well  as  the  rights  of  the  authorities.  The  earlier 
articles  of  union  also  guaranteed  theconstitutions, 
but  this  guarantee  was  otherwise  explained,  and 
many  complaints  of  unconstitutional  proceedings 
and  circumstances  were  raised  and  disregarded. 
It  was  desired  that  these  should  be  no  longer 
endured,  and  there  was  demanded  an  effective 
guarantee  against  violations  of  the  constitutions. 
Thus  arose  Article  5,  of  the  federal  constitution, 
which  guaranteed  with  an  almost  pedantic  care 
the  rights  of  the  nation  and  the  constitutional 
rights  of  the  citizens.  It  would,  in  fact,  be  a  re- 
markable relapse  into  the  old  view  and  order  of 
things,  a  striking  denial  of  the  principle  con- 
tained in  Article  5,  if  we  were  to  assume  that,  in 
case  of  a  formally  presented  complaint,  the  fed- 
eral authorities  were  free  to  interfere  or  not. 
We  hold  rather  that  in  such  cases  the  federal 
authorities  are  obliged  to  take  up  the  complaints 
and  render  a  decision  regarding  them." ' 

The  consideration  of  the  specific  rights  and 
privileges  which  exist  under  the  cantonal  consti- 
tutions and  are  thus  guaranteed  by  federal  au- 

*  Blumer,  I,  469-470. 


RIGHTS   AND   PRIVILEGES.  225 

thority  belongs  to  the  study  of  these  constitu- 
tions, in  other  words,  to  the  study  of  local  gov- 
ernment in  Switzerland. 


IS 


CHAPTER    XI. 

THE  COMMON  PROSPERITY. 

In  the  second  article  of  the  federal  constitu- 
tion, which  enumerates  the  aims  of  the  Federa- 
tion, the  fourth  aim  specified  is  the  promotion 
of  the  common  prosperity.  In  pursuing  this 
comprehensive  purpose,  it  has  been  found  nec- 
essary not  merely  to  create  institutions,  but  also 
to  set  aside  certain  of  those  already  in  existence. 
Conspicuous  among  the  regulations  that  had  to 
be  set  aside  in  order  to  secure  the  end  in  view, 
were  the  restrictions  which  had  been  placed  by 
the  cantons  on  intercantonal  trade.  By  the  con- 
stitution of  1848  the  control  of  the  tariff  system 
was  transferred  to  the  Union,  which  was  em- 
powered to  make  all  necessary  provisions  for 
collecting  import,  export,  and  transit  duties. 
Certain  sums  collected  were  to  be  distributed  to 
the  several  cantons  as  compensation  for  the 
cantonal  dues  which  by  the  adoption  of  this  con- 
stitution and  subsequent  legislation  were  r§' 
(226) 


THE  COMMON   PROSPERITY.  22/ 

voked.  All  sums  over  and  above  what  was  re- 
quired to  compensate  the  cantons  were  turned 
into  the  federal  treasury.  Although  the  can- 
tons were  deprived  of  the  power  to  impose  tar- 
iffs or  tolls,  yet  the  Federation  might  grant 
them  the  privilege  to  levy  and  collect  tolls  to 
promote  the  construction  of  public  works,  which 
were  of  general  interest,  and  which  without  such 
aid  could  not  be  carried  out.  The  release  from 
internal  duties  and  tolls  was  found,  however,  to  . 
be  the  removal  of  so  great  an  obstacle  to  Swiss 
prosperity  that  the  Federal  Assembly  subse- 
quently hesitated  to  permit  the  cantons  to  im- 
pose tolls  for  the  support  of  public  works,  pre- 
ferring instead  to  furnish  pecuniary  support 
directly  from  the  federal  treasury. 

The  articles  of  the  constitution  of  1848,  in- 
volving the  foregoing  regulations,  were  brought 
under  discussion  in  187 1,  with  a  view  to  their 
revision,  and  the  result  of  the  discussion  was  a 
series  of  articles,  which,  with  a  single  unimpor- 
tant change,  were  adopted  in  the  constitution 
of  1874.  According  to  these  articles,  affairs 
concerning  the  customs  duties  belong  to  the 
Federation,  which  has  the  right  to  levy  import 
and  export  duties.  In  levying  these  duties  the 
following  principles  should  be  observed: — 

I.  Import  duties  should  be  as  light  as  possi- 
ble [a)  on  articles  which  ^re  ^eip^nded  for  in- 


228        GOVERNMENT  OF   SWITZERLAND. 

ternal industry  and  agriculture;  (b)  on  commod- 
ities required  to  satisfy  the  necessary  wants  of 
life;  but  articles  of  luxury  should  bear  the  high- 
est tax.  These  principles  should  also  be  fol- 
lowed, if  there  are  no  opposing  considerations,  in 
forming  commercial  treaties  with  foreign  powers. 

2.  Export  duties  should  be  made  as  light  as 
.possible. 

3.  The  tariff  legislation  should  embrace  regu- 
lations calculated  to  secure  the  commerce  of 
the  frontier  and  the  markets.  The  Federation 
retains  always  the  right,  under  extraordinary  cir- 
cumstances, to  adopt  temporary  special  meas- 
ures at  variance  with  the  above  regulations. 

The  revenue  derived  from  the  customs  duties 
belongs  to  the  federal  treasury.  The  sums  pre- 
viously paid  to  the  cantons  as  compensation 
for  their  ancient  duties,  tolls,  and  other  dues, 
are  no  longer  paid.  Exceptionally,  however, 
the  cantons  Uri,  Graubiinden,  Ticino,  and  Wal- 
lis,  on  account  of  their  international  Alpine 
roads,  receive  an  annual  subsidy,  which  has  been 
fixed  at  the  following  figures:  For  Uri,  80,000 
francs;  for  Graubiinden,  200,000;  for  Ticino, 
200,000;  for  Wallis,  50,000.  Prior  to  the  com- 
pletion of  the  St.  Gothard  railway,  the  cantons 
Uri  and  Ticino  together  received  also  an  annual 
subsidy  of  40,000  francs  for  clearing  the  snow 
from  the  St.  Gothard  route/ 

*  Articles  28,  29,  30, 


THE  COMMON   PROSPERITY.  229 

In  setting  aside  internal  duties  certain  taxes 
on  consumption  are  allowed  to  stand,  which,  in- 
asmuch as  they  were  imposed  chiefly  on  articles 
produced  outside  of  the  canton  levying  them, 
and  were  collected  at  the  cantonal  frontiers,  ap- 
pear as  an  exception  under  the  law  abolishing 
intercantonal  duties.  They  were,  moreover, 
treated  as  such  an  exception  under  Article  31, 
which  guaranteed  the  freedom  of  commerce  and 
industry  throughout  the  Federation;  and,  in  Ar- 
ticle 32,  the  cantons  were  specifically  authorized, 
in  accordance  with  the  provisions  of  the  pre- 
ceding article,  to  collect  import  duties  on  wine 
and  other  spirituous  drinks,  under  the  following 
limitations: — 

1.  In  collecting  these  duties  the  transit  shall 
be  in  no  manner  impeded,  and  the  commerce  in 
general  shall  be  interfered  with  as  little  as  pos- 
sible and  burdened  with  no  other  duties. 

2.  If  objects  imported  for  use  are  taken  out 
of  the  canton,  the  duties  that  have  been  collected 
on  them  shall  be  returned  without  further  bur- 
den. 

3.  Articles  of  Swiss  production  shall  be  sub- 
jected to  duties  lower  than  those  imposed  on 
foreign  products. 

4.  The  import  duties  on  wine  and  other  spir- 
ituous drinks  of  Swiss  production,  where  such 
exist,  shall  not  be  increased,  and  they  shall  not 


230        GOVERNMENT  OF    SWITZERLAND. 

be  introduced  into  cantons  where  they  do  not 
exist. 

5.  The  laws  and  ordinances  of  the  cantons 
regarding  the  collection  of  import  duties,  before 
they  are  carried  out,  shall  be  submitted  to  the 
federal  authorities  for  approval,  in  order  that  the 
violation  of  existing  principles  may  be  pre- 
vented. 

In  Article  32  it  was  further  provided  that 
with  the  expiration  of  the  year  1890,  all  im- 
port duties  then  being  collected  by  the  cantons, 
as  also  similar  duties  collected  by  individual 
communes,  shall  cease  without  compensation. 

Among  the  obstacles  to  the  common  welfare 
were  the  privileges  enjoyed  by  certain  persons 
with  respect  to  internal  transportation.  In 
many  cantons  exclusive  privileges  of  transpor- 
tation had  been  granted  to  certain  corporations 
or  communes.  This  was  the  case,  for  example, 
in  the  canton  of  Uri.  Vessels  belonging  to  Lu- 
zern  might  transport  persons  and  wares  to  land- 
ing-places in  Uri,  but  might  not  take  away 
from  these  places  either  persons  or  goods,  be- 
cause Uri  had  given  to  a  shipping  company  the 
exclusive  right  to  do  this.  These  monopolies 
produced  serious  commercial  friction,  which 
suggested  federal  interference;  and  the  matter 
having  been  brought  before  the  Diet,  it  was  de- 
termined that  free  competition  in  the  transporta- 


THE   COMMON    PROSPERITY.  23 1 

tion  of  persons  and  goods,  both  by  land  and 
water,  should  be  guaranteed  to  the  citizens  of  all 
cantons.  The  essential  principle  of  this  resolu- 
tion was  embodied  in  the  thirteenth  article  of 
the  constitution  of  1848.  The  federal  legisla- 
ture was  given  the  right  to  make  the  necessary- 
regulations  concerning  the  abolition  of  existing 
privileges  with  respect  to  the  transportation  of 
persons  and  wares  of  every  sort,  between  can- 
tons or  within  any  given  canton. 

The  first  legislative  application  of  this  con- 
stitutional provision  was  made  in  declaring  the 
shipping  free  between  Luzern,  Fluelen,  Brunnen, 
and  Gerson.  Before  the  revision  of  the  consti- 
tution in  1874,  all  privileges  with  respect  to 
transportation  had  been  swept  away,  and  thus 
the  reason  for  the  existence  of  Article  30  had 
disappeared.  It  was,  therefore,  not  continued 
in  the  revised  constitution,  an  adequate  prohi- 
bition of  privileges  with  respect  to  transporta- 
tion being  found  in  the  constitutional  provisions 
which  guarantee  freedom  of  intercourse  and 
trade. 

The  federal  government  has  not  only  broken 
down  the  hindrances  presented  by  commercial 
privileges,  and  undertaken  to  guarantee  freedom 
of  intercourse  and  trade,  but  it  has  also  been 
charged  with  the  superintendence  of  the  ways 
of  communication.     Althousfh  the  construction 


232        GOVERNMENT  OF  SWITZERLAND. 

of  roads  and  bridges  is  primarily  an  affair  of 
the  cantons,  yet,  under  the  Act  of  Mediation, 
the  Landamman  of  Switzerland  might,  in  case 
of  need,  appoint  inspectors  commissioned  to 
examine  the  routes,  roads,  and  rivers.  If  work 
on  these  were  urgently  required,  he  might  or- 
der it  done;  and,  in  case  of  necessity,  he  might 
cause  to  be  executed  directly,  and  at  the  ex- 
pense of  those  to  whom  it  belonged,  such  work 
as  had  not  been  begun  or  completed  within  the 
time  prescribed.^  The  rights  of  the  federal 
government  to  supervise  the  condition  of  the 
roads  was,  moreover,  recognized  in  subsequent 
proposals  for  constitutional  reform;  and  by  the 
constitution  of  1848  the  Federation  was  author- 
ized to  exercise  superintendence  over  the  roads 
which  it  was  interested  in  maintaining.  Ac- 
cording to  Articles  26  and  33  of  this  constitution, 
certain  sums  were  to  be  paid  over  to  the  can- 
tons in  compensation  for  customs  duties  and  rev- 
enues from  the  post,  which  had  been  relinquished 
to  the  general  government;  but  it  was  here  pro- 
vided that  these  sums  might  be  retained  by  the 
Union,  if  the  roads  and  bridges  belonging  to 
these  cantons  or  corporations  were  not  kept  in 
the  proper  condition.  At  first,  no  permanent 
inspection  was  thought  to  be  necessary,  but 
since  1870  a  bureau  has  been  called  into  exist- 

*Act  of  Mediation,  Art.  23. 


The  common  prosperity.  233 

ence,  at  first  under  the  postal  department  and 
later  under  the  department  of  the  interior, 
through  which  a  permanent  superintendence  is 
maintained.  The  provisions  of  1848  have  been 
embodied  in  Article  37  of  the  present  constitu- 
tion, with  only  slight  modifications.  These 
modifications  refer  to  the  sums  withheld  by  the 
Union,  in  case  the  roads  and  bridges  are  not 
kept  in  a  proper  condition.^ 

The  Federation  has,  moreover,  superseded  the 
cantons  in  the  control  of  postal  affairs.  Before 
1848  these  affairs  were  managed  either  by  the 
several  cantons  directly  or  by  other  persons 
or  bodies  in  contract  with  the  cantons.  The 
postal  system  was  under  direct  cantonal  man- 
agement in  Zurich,  Bern,  Luzern,  Glarus,  Frei- 
burg, Solothurn,  Basel-City,  St.  Gallen,  Graubiin- 
den,  Aargau,  Ticino,  Vaud,  Wallis,  Neufchatel, 
and  Geneva.  In  Uri  it  was  farmed  to  the  can- 
tons Zurich  and  Luzern;  in  Basel-Land  to  Basel- 
City;  in  Schwyz  to  St  Gallen;  in  Unterwalden 
to  Zurich  and  Luzern;  in  Zug  and  Thurgau  to 
Zurich;  in  Schaffhausen  it  was  in  the  hands  of 

'  The  article  of  the  present  constitution  in  question  is  as  fol- 
lows: "La  Confederation  exerce  la  haute  surveillance  sur  les 
routes  et  les  ponts  dont  le  maintien  I'interesse. 

"  Les  sommes  dues  aux  Cantons  designes  i^i  I'article  30,  ;\  raison 
de  leurs  routes  alpestres  internationales,  seront  retenues  par 
I'autorite  ft5d<5rale  si  ces  routes  ne  sont  pas  convenablement  en- 
tretenuespar  eux."    Art.  37. 


234        GOVERNMENT  OF    SWITZERLAND. 

Prince  Thun  and  Taxis.  In  the  half-cantons  of 
Appenzell  communication  was  maintained  with- 
out any  regular  postal  arrangements. 

Through  the  adoption  of  Article  33,  of  the 
constitution  of  1848,  an  important  step  was 
taken  towards  unifying  the  postal  service  of 
Switzerland.  The  functions  of  the  postal  de- 
partments as  they  had  existed  in  the  cantons 
were  transferred  to  the  Federation.  At  the 
same  time  it  was  provided  that  the  postal  con- 
nections, which  were  maintained  at  the  time  of 
the  transfer,  should  not  be  diminished  without 
the  consent  of  the  cantons  concerned ;  further- 
more, that  the  rates  of  postage  should  be  as  low 
as  possible  and  the  same  for  the  whole  territory 
of  the  Federation;  that  the  inviolability  of 
postal  secrets  should  be  guaranteed;  and  that 
the  Federation  should  offer  compensation  for 
the  postal  revenues  relinquished  by  the  several 
cantons.  The  conditions  under  which  this  com- 
pensation was  to  be  rendered  were  as  follows: 
I.  The  cantons  should  receive  annually  sums 
equal  to  the  average  amounts  of  their  net  reve- 
nues from  their  postal  systems  for  three  years, 
1844,  1845,  and  1846.  When,  however,  the 
net  revenue  collected  by  the  Federation  was  less 
than  the  prescribed  compensation,  the  deficit 
was  borne  by  the  several  cantons  in  proportion 
to  the  compensation  prescribed  for  each.     2.  If 


THE  COMMON    PROSPERITY.  235 

a  canton  received  from  its  postal  system  noth- 
ing directly,  or,  by  reason  of  the  terms  under 
which  it  was  farmed,  much  less  than  was  actually 
collected  by  the  person  to  whom  it  was  farmed, 
such  a  condition  of  things  should  be  taken  ac- 
count of  in  distributing  the  amounts  of  the  com- 
pensation. 3.  In  case  the  postal  system  had 
been  transferred  to  a  private  person  or  corpora- 
tion, the  Federation  should  undertake  to  com- 
pensate such  person  or  corporation  for  relin- 
quishing it.  4.  The  Federation  was  empowered 
and  obliged  to  receive,  at  a  fair  compensation 
made  to  the  owners,  all  material  belonging  to  the 
postal  system  in  so  far  as  it  was  found  to  be 
serviceable.  5.  The  federal  authorities  were, 
moreover,  empowered  to  rent  or  purchase  the 
buildings  then  used  in  the  postal  service  of  the 
cantons. 

On  the  first  of  January,  1849,  the  postal  af- 
fairs of  Switzerland  passed  under  the  authority 
of  the  Federal  government.  The  arrangements 
at  this  time  existing  in  the  several  cantons  were 
provisionally  adopted,  and  the  whole  system 
was  placed  under  the  authority  of  the  Federal 
Council.  During  the  same  year  the  Federal 
Assembly  passed  laws  embracing  permanent 
postal  regulations,  which  have  become  uniformly 
valid  throughout  the  whole  Federation.  Under 
these  laws  provision  is  made  for  the  transporta- 


236        GOVERNMENT  OF    SWITZERLAND. 

tion  of  letters,  packages,  and  persons ;  for  the  or- 
ganization of  the  postal  administration;  and  for 
the  determination  of  the  rates  of  postage.  By 
the  law  organizing  the  postal  administration,  the 
Swiss  territory  was  divided  into  eleven  districts, 
which  took  their  names  from  the  principal  town 
in  each.  These  are  the  districts  of  Geneva, 
Lausanne,  Bern,  Neufchatel,  Basel,  Aarau,  Lu- 
zern,  Zurich,  St.  Gallen,  Chur,  and  Bellinzona. 
At  the  head  of  the  administration  stands  the 
Federal  Council,  which  has  the  power  to  estab- 
lish regulations  and  appoint  officers.  While  to 
this  body  belongs  the  supreme  control,  it  has 
delegated  extensive  powers  to  the  Postal  De- 
partment, which  exercises  supervision  over  the 
whole  system,  and  has  in  turn  delegated  certain 
of  its  powers  to  subordinate  officers.  There  is, 
then,  a  central  directory,  with  general  activity 
and  supervision,  and  in  each  of  the  territorial 
subdivisions  already  named,  a  district  directory. 
All  officers  are  appointed  for  a  term  of  three 
years,  while  the  clerks  hold  for  an  indefinite 
period;  but  both  may  be  removed  at  any  time 
for  cause. 

In  1852  the  Federal  Assembly  undertook  to 
fix  the  amounts  of  the  postal  indemnity  to  be 
paid  to  the  several  cantons.  The  federal  law  on 
this  subject  left  to  each  canton  the  privilege  of 
seeking  redress  through  the  courts,  in  case  of  dis- 


THE   COMMON    PROSPERITY.  237 

satisfaction  with  the  amount  fixed  by  the  as- 
sembly. Under  this  privilege,  only  Neufchatel 
and  Basel-Land  were  successful  in  attempts  to 
obtain  an  increase  in  the  amounts  prescribed, 
which  in  the  case  of  the  latter  was  followed  by 
a  corresponding  reduction  in  the  amount  at  first 
apportioned  to  Basel-City.  The  whole  amount 
to  be  distributed  was  1,486,560  francs  and  94 
centimes,  of  which  the  apportionment  was  as  fol- 
lows : — 

Zurich  was  to  receive francs  232,138.46 

Bern "  249,252.48 

Luzern "  57,958. 18 

Uri "  29,771.10 

Schwyz  "  2,857.14 

Unterwalden  ob  dem  Wald "  342.86 

Unterwalden  nid  dem  Wald "  228. 57 

Glariis "  10,329.83 

^ug  "  3.285.71 

Freiburg "  20,320.52 

Solothurn "  10,490.93 

Basel-City  "  119,065.25 

Basel-Land "  16,758.61 

Schaffhausen "  3,181.82 

Appenzell,  Exterior "  '     14,285.71 

Appenzell,  Interior "  342.86 

St.  G alien "  89,084.76 

Graubiinden "  33.549-  '9 

Aargau "  146,694.43 

Thurgau "  25,454.55 

Ticino "  14,908.96 

Vaud   "  207,812.91 

Wallis "  26,488.07 

Neufchatel , "  74,676.33 

Geneva "  97.281.71 

Total '. francs  1,486,560.94 

The  rights  of  the  Prince  of  Thun  and  Taxis 
in  the  postal  affairs  of  Schafthausen  were  pur- 


238        GOVERNMENT  OF    SWITZERLAND. 

chased  by  the  federal  government  for  1 50,000 
francs.  As  compared  with  the  total  indemnity 
to  be  paid,  the  net  postal  income  of  the  Federa- 
tion under  this  order  of  things  has  sometimes 
shown  a  surplus,  but  oftener  a  deficit.  In  the 
revision  of  the  constitution  in  1874,  the  cantons 
agreed  to  forego  their  annual  indemnity  in  view 
of  a  release  from  certain  military  burdens.  Ar- 
ticle 36  of  the  revised  constitution,  therefore, 
affirms  that  the  postal  and  telegraphic  systems 
throughout  Switzerland  belong  to  the  federal 
government;  that  the  revenue  derived  from  them 
belongs  to  the  federal  treasury;  that  the  rates 
should  be  as  low  as  possible  and  the  same  for 
the  whole  territory  of  the  Federation;  and  that 
the  inviolability  of  postal  and  telegraphic  se- 
crets should  be  guaranteed. 

For  very  good  reasons  the  constitutional  pro- 
vision which  was  here  established  regarding  the 
telegraph  had  had  no  place  in  the  constitution 
of  1848.  The  law  of  December  23,  185 1,  how- 
ever, placed  it  under  the  exclusive  control  of 
the  federal  government.^  Whatever  concessions 
were  later  made  to  private  persons  or  corpora- 
tions were  issued  by  the  Federal  Council.    These 

*  In  France  a  decree  of  December  27,  1851,  declared: 
"Aucune  ligne  t616graphique  ne  peut  etre  6tablie  ou  employee 
&  la  transmission  des  correspondanccs  que  par  le  gouvernement 
pi;  avep  soi)  autorisaljon," 


THE  COMMON   PROSPERITY.  239 

were  made  to  persons  or  corporations  for  re- 
stricted use,  chiefly  to  railway  corporations,  re- 
stricting the  use  of  the  telegraph  to  the  service 
of  operating  railways.  Since  the  passage,  in 
1852,  of  the  general  law  regulating  the  construc- 
tion and  use  of  railways,  a  railway  franchise 
carries  with  it  the  right  to  establish  a  telegraph 
line  along  the  road  to  be  used  in  conducting 
the  business  of  the  road.  Funds  for  the  direct 
construction  of  lines  of  telegraph  by  the  federal 
government  were  received  in  1852,  as  a  loan, 
without  interest,  from  private  persons  and  can- 
tons, for  a  period  of  five  years.  The  lines  at 
first  established  between  the  more  important 
points  were  the  beginnings  of  an  elaborate  sys- 
tem under  direct  federal  management.  The 
propo.sed  plan  to  unite  the  postal  and  tele- 
graphic systems  under  a  single  organization  was 
finally  set  aside  as  tending  to  produce  complica- 
tions and  friction  rather  than  simplicity  and  fa- 
cility of  operation.  The  ends  in  view  were 
found  to  be  most  surely  served  by  giving  to  the 
telegraph  the  conditions  of  independent  devel- 
opment, and  bringing  it  into  close  co-operation 
with  the  postal  department.  Under  the  organ- 
ization effected  in  1854,  the  supreme  adminis- 
trative authority,  as  in  the  postal  system,  is 
vested  in  the  Federal  Council.  Under  the 
postal  and  telegraphic  department,  there  is  4 


240        GOVERNMENT  OF    SWITZERLAND. 

central  directory  of  telegraphic  administration, 
and  in  each  of  six  districts  a  subordinate  di- 
rectory. The  officers  are  appointed  either  by 
the  Federal  Council  or  by  other  officers  holding 
delegated  authority  from  that  body. 

Before  1848  the  several  cantons  held  the 
right  to  coin  money.  Through  the  exercise  of 
this  right,  through  the  lack  of  any  central  au- 
thority in  this  matter,  and  through  the  use  of 
different  foreign  coins  in  different  parts  of  Switz- 
erland, the  medium  of  exchange  had  become 
apparently  hopelessly  deteriorated.  By  the  pro- 
visions of  the  constitution  of  this  year,  however, 
all  rights  of  coinage  were  vested  exclusively 
in  the  federal  government.  Power  was,  more- 
over, conferred  on  the  federal  government  to  fix 
regulations  under  which  existing  coins  might  be 
circulated  or  rp-coined.  Legislation  under  these 
provisions  was  had  May  5,  1850.  The  franc, 
composed  of  one  hundred  Rnppen,  or  ceiitimeSy 
was  adopted;  and  the  coins  specified  in  the  law, 
multiples  or  fractions  of  this  unit,  were  made 
legal  tender.  In  January,  i860,  the  federal  leg- 
islature determined  further  details  of  the  system 
here  established;  and,  among  others,  the  condi- 
tions under  which  French  gold  coins  might  cir- 
culate in  SwitzerJand,  what  coins  should  con- 
tinue to  be  struck  as  token  money,  and  to  what 
amount  these  token  coins  should  be  legal  ten- 


THE  COMMON   PROSPERITY.  24 1 

der.  Finally,  in  1874,  provisions  essentially 
like  those  then  in  force  were  introduced  into  the 
revised  constitution/ 

The  need  of  uniformity  of  weights  and  meas- 
ures was  recognized  early  in  the  movement  to- 
wards national  unity.  In  1848  it  was  constitu- 
tionally provided  that  the  union  should  intro- 
duce, on  the  basis  of  the  existing  confederate 
concordat,  weights  and  measures  which  should 
be  uniform  throughout  the  Federation.  Later 
the  details  of  the  system  were  determined  by 
federal  legislation.  The  power  here  exercised 
by  the  Federation  was  confirmed  in  that  body 
by  the  fortieth  article  of  the  constitution  of 
1874;  but  the  execution  of  the  laws  relating  to 
these  matters  was  left  with  the  cantons,  acting 
under  the  supervision  of  the  federal  authorities.* 

All  these  provisions  show  a  marked  extension 
of  the  functions  of  the  central  government, 
which  may  be  observed  also  in  the  recent  legis- 

^  "  La  Confederation  exerce  tous  les  droits  compris  dans  la 
r(5gale  des  monnaies. 

"  Elle  a  seule  le  droit  de  battre  monnaie. 

"  Elle  fixe  le  systfeme  mon^taire  et  peut  ddicter,  s'il  y  a  lieu, 
des  prescriptions  sur  la  tarification  de   monnaies   dtrangeres." 

Art.  38. 

»  "  La  Confederation  determine  le  systime  des  poids  et  me- 
sures. 

"  Les  cantons  executent,  sous  la  surveillance  de  la  Confede* 
ration,  les  lois  concernant  cette  matitsre."     Art.  40. 
16 


242        GOVERNMENT  OF  SWITZERLAND. 

lation  regarding  education.  Surrounded  by  na- 
tions whose  governments  rested  on  monarchical 
traditions,  and  in  which  the  instruction  of  youth 
was  more  or  less  colored  by  monarchical  doc- 
trines, it  was  important  that  such  provisions 
should  be  made  as  would  enable  the  youth  of 
the  republic  to  receive  their  education  under 
influences  favorable  to  the  maintenance  of  the  re- 
publican spirit.  Moreover,  in  view  of  the  antag- 
onisms that  existed  between  the  German, 
French,  and  Italian  cantons,  and  of  the  social 
friction  that  appeared  between  the  adherents  of 
the  different  creeds,  it  was  important  that  the 
federal  government  should  be  in  a  position  to 
strengthen  and  direct  the  forces  which  make 
for  unity.  Important  among  these  forces  are 
those  which  proceed  from  a  wisely  arranged 
system  of  public  instruction.  Down  to  1848  all 
public  schools  had  been  in  the  hands  of  the  can- 
tons, but  in  the  federal  constitution  adopted  at 
that  time,  it  was  provided  that  the  federal  gov- 
ernment might  establish  a  university  and  a  poly- 
technical  school.' 

At  the  first  session  of  the  federal  legislature 
after  the  adoption  of  this  constitution,  a  propo- 
sition to  establish  a  university  and  a  polytech- 
nical  school  was  presented  and  considered.  A 
little  later,  in   185 1,  it  was  referred  by  the  Fed- 

^  Constitution  of  1848,  Art.  22. 


THE  COMMON   PROSPERITY.  243 

eral  Council  to  a  commission  often  experts  from 
the  different  parts  of  the  republic,  who  reported 
in  favor  of  the  project,  but  for  various  reasons, 
legislative  action  was  deferred.  In  February, 
1854,  however,  the  proposition  referring  to  a 
university  having  been  rejected,  a  law  was 
passed  establishing  a  federal  polytechnical 
school.  The  rejection  of  the  university  project 
did  not  indicate  a  determination  to  withdraw 
federal  attention  from  the  higher  grades  of  aca- 
demical instruction;  for  in  the  revised  constitu- 
tion of  1874  extensive  powers  were  conferred 
upon  the  general  government  with  respect  to 
education.  Under  this  constitution,  the  Union 
is  empowered  to  establish,  in  addition  to  the  al- 
ready existing  polytechnical  school,  a  federal 
university  and  other  institutions  for  higher  edu- 
cation, or  support  such  institutions.  Under 
this  provision,  the  federal  legislature  was  left 
with  the  freedom  of  alternative  action.  It 
might,  on  the  one  hand,  found  an  independent 
federal  university  and  other  institutions  for 
higher  instruction,  or  support  those  existing  in 
the  cantons;  or,  on  the  other  hand,  limit  its  ac- 
tivity to  maintaining  the  polytechnical  school. 
The  cantons  provide  adequate  primary  in- 
struction, which  must  be  placed  exclusively 
under  the  direction  of  the  civil  authority.  This 
does  not  mean  that  the  clergy,  if  not   Jesuits, 


244        GOVERNMENT  OF  SWITZERLAND. 

shall  be  excluded  from  the  positions  of  teachers 
and  other  school  officers;  if  occupying  these  posi- 
tions, they  are  required  to  stand  on  the  same 
footing  as  laymen,  and  so  to  impart  their  instruc- 
tion as  not  to  do  violence  to  the  principle  of 
freedom  of  conscience  and  belief.  Although 
the  primary  schools  are  immediately  under  can- 
tonal control,  the  cantons  are  not  permitted  to 
separate  them  into  confessional  schools;  for  it 
is  required  that  the  public  schools  must  be  so 
ordered  and  conducted  that  the  adherents  of 
all  confessions  may  attend  them  without  suffer- 
ing in  any  manner  with  respect  to  their  liberty 
of  conscience  or  belief.  Primary  education  is 
compulsory,  and,  in  the  public  schools,  free.  Fi- 
nally, the  power  to  secure  the  proper  observance 
of  these  provisions  by  the  cantons  is  placed  in 
the  hands  of  the  federal  authorities,  which  "  shall 
take  the  necessary  measures  against  the  cantons 
that  do  not  comply  with  these  obligations."^ 

"No  penalties,  however,  were  declared,  and 
no  means  prescribed  to  force  the  cantonal  gov- 
ernment to  carry  the  law  into  effect.  Certain 
cantons  not  having  fulfilled  their  duties  in  this 
respect,  the  Federal  Assembly,  in  1882, instructed 
the  Federal  Council  to  open  an  inquiry,  and  to 
take  the  necessary  measures  to  insure  general 
compliance  with  the  constitutional  law.     In  re- 

'Swiss  Federal  Constitution.     Art.  27. 


THE  COMMON   PROSPERITY.  245 

ply  the  Federal  Council  proposed  the  creation 
of  a  Federal  Department  of  Public  Instruction, 
having  under  its  orders  a  certain  number  of  in- 
spectors, whose  duty  it  would  be  to  see  that  the 
law  was  everywhere  carried  into  effect.  Ag- 
itation against  this  proposal  at  once  began 
throughout  the  country,  and  in  a  short  time 
a  petition  bearing  upwards  of  200,000  signatures, 
was  forwarded  to  the  central  government.  Ac- 
cording to  the  Swiss  constitution,  if  30,000  cit- 
izens only  demand  a  plebiscitum,  any  project 
voted  by  the  Assembly  must  be  submitted  to  the 
popular  vote.  In  consequence,  therefore,  of  so 
imposing  a  number  of  signatures,  the  Federal 
Council  was  obliged,  much  against  its  will,  to 
submit  the  proposal  to  the  popular  vote,  when 
it  was  rejected  by  316,929  against  170,459  in  its 
favor.  To  understand  the  real  significance  of 
this  vote,  it  must  be  borne  in  mind  that  up  to 
the  present  the  Swiss  cantons  have  enjoyed  an 
almost  absolute  self-government,  but  that  dur- 
ing the  last  few  years  the  Federal  Council  has 
tried  by  every  means  to  centralize  power  in  its 
own  hands.  The  cantons  considered  the  pro- 
posed inspection  to  be  a  new  attempt  to  deprive 
them  of  their  autonomy,  and  therefore  rejected 
it  rather  with  a  view  to  maintaining  their  rights 
than  because  they  considered  the  project  bad."' 

^  "Annual  Register  for  1882,"  p.  268. 


246        GOVERNMENT  OF  SWITZERLAND. 

In  speaking;  of  the  relation  of  the  schools  to 
.religion,  Matthew  Arnold  says :  "  Whoever  has 
seen  the  divisions  caused  in  a  so-called  logical 
nation  like  the  French  by  this  principle  of  the 
neutrality  of  the  popular  school  in  matter  of  re- 
ligion might  expect  difficulty  here.  None  what- 
ever has  arisen.  The  Swiss  communities,  ap- 
plying the  principle  for  themselves  and  not 
leaving  theorists  and  politicians  to  apply  it 
for  them,  have  done  in  the  matter  what  they 
find  suitable  to  their  wants,  and  have  in  every 
popular  school  religious  instruction  in  the  relig- 
ion of  the  majority,  a  Catholic  instruction  in 
Catholic  cantons  like  Luzern,  a  Protestant  in 
Protestant  cantons  like  Zurich.  There  is  no 
unfair  dealing,  no  proselytizing,  no  complaint."^ 

Among  the  rights  exercised  for  the  common 
good  by  the  federal  government  under*  the  con- 
stitution of  1848,  was  the  right,  in  the  interest 
of  the  Federation  or  a  great  part  of  the  same,  to 
construct,  or  aid  in  the  construction  of,  public 
works  at  the  expense  of  the  Federation.  To 
this  end,  the  Federation  was  authorized  to  exer- 
cise the  right  of  eminent  domain.  The  deter- 
mination of  details  in  this  matter  was  left  to  fed- 
eral legislation;  and  it  was  also  competent  for 

^  "Special  Report  on  Certain  Points  connected  with  Elementary 
Education  in  Germany,  Switzerland,  and  Frange, "  L,ondon, 
1886,  p.  8. 


THE  COMMON   rROSPERITY.  247 

the  Federal  Assembly  to  prohibit  the  construc- 
tion of  public  works  which  contravened  the  mili- 
tary interests  of  the  Federation.'  The  construc- 
tion and  control  of  railroads  were  clearly  within 
the  scope  of  these  provisions,  and  in  December, 

1849,  this  subject  was  brought  to  the  attention 
of  the    Federal    Assembly.     In    the   spring  of 

1850,  the  Federal  Council  proposed  a  law  regard- 
ing the  exercise  of  the  right  of  eminent  domain, 
which  was  adopted  by  the  Federal  Assembly. 
This  law  had  reference  not  merely  to  the  con- 
struction of  railroads,  but  also  to  the  construction 
of  any  public  works  whatsoever,  such  as  high- 
ways and  improvements  in  water-courses,  which 
the  Federation  might  find  it  for  its  interest  to 
further. 

Under  the  provisions  of  the  constitution,  the 
federal  legislature  was  free  to  make  the  con- 
struction and  maintenance  of  railroads  an  affair 
of  the  state,  or  to  leave  their  development  to  pri- 
vate enterprise.  The  latter  course  was  chosen, 
as  avoiding  a  degree  of  centralization  which 
might  be  dangerous  to  the  well-being  of  the 
Union.  By  a  later  federal  law,  concessions  for 
the  construction  and  use  of  railroads  by  private 
persons  or  corporations  were  to  be  sought  im- 
mediately from  the  ^cantonal,  but  jieeded  to  be 
confirmed  by  the  central,  authority.     Such  con- 

^Con^ution  of  1848,  Art.  21. 


248        GOVERNMENT  OF  SWITZERLAND. 

firmation,  however,  could  not  be  withheld  except 
in  cases  where  the  construction  of  the  road 
would  violate  the  military  interests  of  the  Feder- 
ation. The  practical  difficulties  which  arose 
through  the  exercise  of  these  extensive  powers 
by  the  cantons  led  the  Federal  Council  to  pro- 
pose that  the  functions  of  the  Union  in  railroad 
affairs  should  be  materially  extended  and  those 
of  the  cantons  curtailed.^  In  keeping  with  this 
proposition  was  passed  the  federal  law  of  Decem- 
ber 23,  1872.  By  this  law,  the  right  to  grant 
concessions  to  railroads,  was  vested  solely  in  the 
hands  of  the  federal  authorities,  yet  the  co-oper- 
ation of  the  cantons  was  to  be  sought  in  the  pre- 
liminary negotiations.  "  Through  the  railroad 
law  of  1872,"  says  Dr.  Blumer,  "the  whole  sys- 
tem of  Swiss  railroads  was  almost  as  completely 
centralized  as  the  affairs  of  the  customs  duties, 
the  post-office,  and  the  mint.'"  The  reason  that 
little  or  no  opposition  was  offered  to  this  impor- 
tant movement  toward  greater  centralization 
has  been  found  in  the  lack  of  cantonal  traditions 
regarding  railroad  affairs,  and  in  the  very  evi- 
dent need,  in  the  limited  territory  of  Switzer- 
land, of  unity  of  control. 

The    revised  constitution  of   1874  expressly 

sanctioned    the  condition    into  which  railroad 

» 

»Blumer,  II,  48. 
a  Blumer,  II,  48. 


THE  COMMON   PROSPERITY.  249 

affairs  had  been  brought  by  previous  legislation; 
for  the  constitutional  provisions  of  1848,  regard- 
ing public  works,  were  retained  in  the  twenty- 
third  article  of  the  new  constitution,  and  another 
article  was  added,  the  twenty-sixth,  declaring 
that  "legislation  on  the  construction  and  man- 
agement of  railroads  belongs  to  the  Union." 
Under  these  provisions  has  grown  up  the  elab- 
orate railroad  law  of  Switzerland. 

Under  the  provisions  of  Article  23,  the  federal 
government  has,  moreover,  contributed  to  the 
execution  of  other  public  works.  Conspicuous 
among  these  are  the  works  that  have  been  con- 
structed to  confine  the  abundant  waters  of  the 
country  within  their  proper  limits;  such,  for  ex- 
ample, as  the  works  on  the  upper  Rhine  and 
Rhone.  But  in  controlling  the  water  and  for- 
ests of  the  mountains,  the  federal  government 
acts  under  a  special  constitutional  provision. 
This  provision  is  contained  in  the  twenty-fourth 
article  of  the  present  constitution,  which  confers 
upon  the  Union  the  right  of  supervision  over  the 
police  charged  with  the  immediate  control  of  the 
forests  and  the  works  for  the  management  of  the 
water  in  the  mountainous  regions.  The  federal 
authorities  contribute  to  the  construction  of 
these  works,  also  to  replanting  the  regions  where 
the  mountain  streams  have  their  sources.  The 
federal  authorities,  moreover,  take  the  measures 


250        GOVERNMENT  OF  SWITZERLAND. 

necessary  to  maintain  these  works,  and  to  pre- 
serve existing  forests.  Under  these  provisions, 
it  is  possible  for  the  federal  authorities  either  to 
take  such  positive  and  far-reaching  action  as 
would  confine  the  cantons  to  mere  police  activ- 
ity, or  to  make  certain  fundamental  determina- 
tions and  leave  to  the  cantons  a  large  and  im- 
portant sphere  of  operations.  The  latter  course 
has  been  chosen. 

Besides  the  rights  here  exercised  with  refer- 
ence to  material  interests,  certain  other  rights 
are  conferred  upon  the  Federation  with  reference 
to  that  class  of  the  population  known  as  the 
Heiniatlosen,  under  which  federal  activity  has 
been  specially  favorable  to  the  social  progress  of 
the  republic.  Through  various  causes  many 
persons  had  fallen  into  this  class  and  become 
homeless;  they  had  lost  their  rights  of  citizenship 
and  residence,  and,  as  vagabonds,  were  driven 
from  canton  to  canton,  and  in  their  miserable 
wanderings  sought  shelter  in  barns  and  forests. 
By  the  existing  constitution,  it  is  ordered  that 
the  federal  legislature  shall  take  measures  to 
give  these  persons  a  settled  and  recognized 
place  among  the  inhabitants  of  the  country, 
and  to  prevent  new  additions  to  this  class.'  In 
favor  of  social  order  is  also  the  constitutional 
right  which  the  federal  authorities  enjoy  of  ex- 

» Article  68. 


THE  COMMON   PROSPERITY.  251 

pelling  from  Swiss  territory  any  foreigners  whose 
presence  endangers  the  internal  or  external  se- 
curity of  the  Union.^  Switzerland  offers  an 
asylum  to  the  members  of  all  parties  suffering 
political  persecution,  as  long  as  they  show  them- 
selves worthy  of  such  consideration  by  peaceful 
conduct.  The  republic,  however,  grants  them 
no  asylum,  if,  while  on  its  territory,  they  con- 
tinue their  intrigues  and  attacks  on  the  exist- 
ence and  security  of  other  states.*  Although 
this  hospitable  policy  has  become  customary, 
yet  there  are  no  grounds  on  which  hospitality 
may  be  claimed  by  anyone  under  persecution. 

The  constitutional  provision  touching  this 
matter  is  only  negative  in  its  indications;  it  con- 
fers the  right  to  expel  foreigners  under  certain 
conditions,  but  not  the  right  to  quarter  them  on 
any  canton  against  the  will  of  such  canton. 

However  hospitable  might  be  the  designs  of 
the  Swiss  with  regard  to  persecuted  foreigners, 
yet,  aS  compared  with  the  United  States,  their 
rugged  country  presents  few  resources  through 
which  refugees  may  find  daily  support  or  a  bet- 
terment of  their  fortunes.  In  fact,  the  meager 
resources  of  Switzerland  have  made  it  annually 
necessary  for  a  certain  part  of  the  native  popula- 
tion to  emigrate.     Between  the  end  of  1868  and 

^  Article  70. 
'Blumer,  II,  252. 


252        GOVERNMENT   OF   SWITZERLAND. 

the  end  of  1877,  35,158  persons  emigrated  from 
twenty  cantons  and  half-cantons,  exclusive  of  Uri, 
Frieburg,  Solothurn,  Vaud,  and  Geneva,  These 
facts  seemed  to  indicate  that  some  general  con- 
trol of  emigration  and  the  agents  through  which 
it  was  furthered,  was  desirable.  The  constitu- 
tion of  1848  contained  no  provision  regarding 
this  subject;  it  was,  however,  taken  up  by  the 
federal  legislature,  and  later  recognized  in  the 
thirty-fourth  article  of  the  existing  fundamental 
law. 

In  determining  what  the  federal  government 
may  do  towards  increasing  the  common  pros- 
perity, the  Swiss  have  not  seen  fit  to  leave  the 
Federal  Assembly  and  the  Federal  Tribunal 
any  great  discretionary  power.  Through  the 
constitution  they  have  determined  specifically 
many  things  which  under  a  general  provision 
might  have  been  clearly  interpreted  to  belong, 
as  the  case  might  be,  to  either  federal  or  can- 
tonal authority.  Of  such  articles  of  specific 
authorization,  many  have  already  been  consid- 
ered. In  this  list  may  also  be  placed  Article  69, 
which  empowers  the  Union  to  pass  laws  regard- 
ing sanitary  police  regulations  concerning  cattle 
pests  and  such  epidemics  as  threaten  the  public 
health;  Article  34,  which  confers  upon  the  Fed- 
eration the  right  to  legislate  with  respect  to  the 
employment  of  children  in  factories,  the  hours  of 


THE  COMMON  PROSPERITY.  253 

work  for  adults,  and  the  means  of  protecting  la- 
borers against  such  employments  as  endanger 
their  health  or  safety;  and  Article  35,  which 
gives  the  federal  authorities  the  right  to  take  the 
necessary  measures  with  respect  to  lotteries,  and 
in  which  at  the  same  time  it  is  directly  declared 
that  the  erection  of  gambling  houses  is  prohib- 
ited, that  those  in  existence  must  be  closed  on 
the  31st  of  December,  1877,  and  that  all  conces- 
sions granted  or  renewed  after  1871  were  null 
and  void.  I«  the  same  class  belongs,  moreover, 
Article  25,  which  authorizes  the  federal  govern- 
ment to  establish  regulations  under  which  hunt- 
ing and  fishing  may  be  carried  on,  with  the  view 
of  preserving  the  larger  game,  and  also  such 
birds  as  are  useful  to  agriculture  and  forestry. 

The  most  important  act,  comprehensive  of 
many  others,  towards  the  attainment  of  the  com- 
mon prosperity  of  the  several  lands  now  united 
under  federal  control  was  the  transfer  of  sover- 
eignty from  the  individual  cantons  to  the  Union. 
The  internal  revolution  which  is  marked  by  this 
transfer  of  power,  and  whose  constitutional  re- 
sults are  set  forth  in  the  preceding  pages,  intro- 
duces a  new  period  in  the  history  of  Swiss  in- 
stitutions. The  cantons  as  individual  organisms 
do  not  stand  as  isolated  facts  in  the  political 
history  of  Europe.  They  are  representatives  of 
a  large  class  of  political  organizations  which  be- 


254        GOVERNMENT  OF  SWITZERLAND. 

came  conspicuous  in  the  later  centuries  of  the 
middle  ages.  The  fact  that  has  given  them 
special  significance  is  their  union  and  the  devel- 
opment among  them  of  social  and  political  ties 
which  have  established  the  essential  conditions 
of  national  life  and  growth.  This  revolution, 
effected  by  the  peaceful  processes  of  constitu- 
tional amendment  and  legislation,  has  placed 
the  events  of  Swiss  history  during  the  last  fifty 
years  in  line  with  the  movements  towards  unity 
which  have  been  carried  on  in  Italy  and  Ger- 
many, and  by  binding  the  several  cantons  so 
firmly  under  a  central  power  as  to  remove  the 
liability  of  disintegration,  has  justified  the  em- 
phasis here  given  to  the  establishment  of  federal 
institutions  as  the  most  important  achievement 
in  the  political  history  of  Switzerland. 


INDEX. 


Aargau,  32,  36,  37,  41,  45,  52. 

Act  of  Mediation,  34,  36,  39,  43,  46, 
47,  48,  95,  168,  189,    190,  203,  221 

Alliances,  early,  20;  not  permitted  to 
cantons  without  consent  of  Diet,  25; 
with  France,  33,  42,  189;  of  cantons, 
168,  171;  for  const,  guarantees,  52. 

Allies,  43  ;  invade  Swiss  territory,  43; 
determine  integrity  of  S.,  44;  ac- 
cord neutrality,  ^5,  46. 

Ambassadors,  received  by  Diet,  24; 
by  cantons,  25 ;  in  the  Diet,  48. 

Amendment,  of  Swiss  Const.,  57;  of 
U.  S.  Const.,  58;  of  Mexican,  59. 

Appenzell  5,  19,  20,  32,  45,  54,  63. 

Arbitration,  court  of,  in  S.,  154,  156. 

Argentine  Republic,  56;  const,  pre- 
amble, 57 ;  const,  amended,  60  ;  dis- 
tribution of  power  in,  93 ;  ratio  of 
rep.,  98;    suffrage,  99. 

Aristocracy,  in  England,  64,  78;  ori- 
gin of,  80;  in  Greece,  Italy,  Nether- 
lands, Switzerland,  81. 

Articles  of  union,  1291,  15,  16. 

Association,  right  of,  217. 

Austria  17,  21,  22,  37,   45. 

Basel,  19,  40,  45 ;  division  of  ^^ 

Belief,  freedom  of,  21  ^. 

Bern,  joins  the  union,  1353,  17;  her 
policy,  17  ;  quota,  28;  divided,  32; 
territory  taken  from,  36;  lands  to 
Vaud.,  37,  40,41;  seeks  pre-revolu- 
tionaryconditions,  43, 45,49,  52,  157. 

Bishoprics,  214. 

British  N.  Am.  Act,  89,  100,  147. 

Burgermeister  of  I'orort,  49. 

Cantons,  primitive  purposes  of,  11; 
increased,  13-19,  36;  sovereignty  of, 
29;  new,  1798,  32;  in  military  af- 
fairs,    193;    comp.  with  States,  181. 

Cantonal  consts.  revised,  50;  178. 

Capital  punishment,  220. 

Capitulations,  military,  176. 

Catholiccantons,6;  defeated,  ^4. 

Catholics  and  Protestants,  union,   7. 

Censorshipj  216. 

Centralization  demanded  in  military 
affairs,  27;  need  of,  in  S.,  28,  35;  of 
1798,  effect  of,  38;  69,  241. 


Centralists,  33-35. 

Citizens,  representation  of,  98. 

Citizenship,  207-212;  loss  of,  210. 

Civil  rights,  210. 

Children,  215;  employment,  52. 

Class  distinctions  in  S.,  8. 

Coinage,  240. 

Congress  of  Vienna,  Swiss  ambassa- 
dors at,  45;  neutrality,  46,   86. 

Conscience,  rights  of,  6,  213. 

Constitution,  violation  of,  223;  of  1798, 
a  step  towards  centralization,  32; 
29-32;  of  1815,  44-54,  46;  of  1848, 
opposing  cantons,  5 ;  54-55 ;  of  U. 
S.,  makers  of,  6;  revision  of,    167. 

Consts.    guranteed,  38,  47,  i66,  223. 

Courts,  1798,  31;  of  the  U.  S.,  140; 
jurisdiction  of,  150-152;  of  the  Ar- 
gentine Republic,  141 ;  Canadian, 
relation  to  English  and  U.  S.,  146- 
151  ;  in  S., 153-163. 

Convents,  214. 

Customs  duties,  194,  195,  227,  228. 

Defensional,  28. 

Democracy,  in  confl'ct  with  feudalism, 
II ;  French,  29;  return  to  63. 

Diet,  23;  meetings  of,  23;  summoning 
the,  24 ;  powers  of,  24 ;  subordinate 
States  represented  in,  24  ;  only  or- 
gan of  the  Conf ,  23,  26;  under  Act 
of  Mediation,  41 ;  powers  of,  41  I  at 
Zurich  sets  aside  the  Act  of  Medi- 
ation, 43;  of  19  cantons  at  Zurich, 
1S14,    44;    cantonal    rep.  in,  48. 

Directorial  canton,  40,  42- 

Directory,    1798,    31-33. 

Distribution  of  power,  56-96. 

Divorce,  215. 

Duties,  by  cantons,  227,  229,  230. 

Education,  242. 

Emigration,  251. 

Empire,  Swiss  lands  in  relation  to,  10. 

Equality,  3,  4;  of  States,  108,   203, 

Executive,  121-139;  in  Canada,  122; 
in  Germany,  123;  in  Am.,  federal 
republics,  135;  in  U.S.,  125;  Mex- 
ico, 127;  Col.  128;  S,  133. 

Exemptions  from  military  tax,  198. 

Extradition,  172-186. 

(255) 


256 


INDEX. 


Federal  Assembly,  elects  Federal  Tri- 
bunal, 136;  determines  seat  of  Fed. 
Trib.,  157;  decides  questions  of  ju- 
risdiction, 159,  169,  179;  convoked, 
180. 

Federal  Council,  in  Germany,  106; 
membersof,  io9;o(ricersof,  i34;salary 
of,  135;  powers  of,  135;  relation  to 
legislature,  135;  distribution  of  func- 
tions, 137;  compared  with  English 
Cabinet,  138;  i69;in  foreign  affairs, 
172;  on  foreign  service,  175;  179; 
informed    of  internal  conflicts,  180. 

Federal  tribunal,  after  1874,  157;  sala- 
ries, 157;  place  of  meeting  deter- 
mined, 157,    169,  179. 

Foreigners,  251. 

France,  21,  22;  alliance  with,  25; 
crisis  in,  33 ;  enlists  Swiss,  42,  45,  85. 

Free  trade  between  cantons,  221. 

Freemen,  assembly  of,  18. 

Freiburg,  18,  19,  37,  40. 

Glarus,  17,  32,  45. 

Graubllnden,  i,  7,  37,  41,  228. 

Gurantee  of  constitutions,  s'    52,  165. 

Gunpowder,  195,  197. 

Helvetic  Republic,  20,  29,  30,  33,  189. 

Independence,  ig,  20,  21, 

Initiative,  116. 

Instruction,  primary,  243. 

Intolerance,  religious,  212. 

Jesuits,  53,   214,  243. 

Judgments,  civil,  179,  187. 

Judiciary,  the,  140-163. 

Jurisdiction  of  federal  courts,  150-153; 
of  Swiss  Federal  Tribunal,  158-162. 

Landamman,   40,   42,  49,   232. 

Liquors,  revenue  from,  195. 

Luzern,  14,  16,  17,  28,  40,  49,  52,  157. 

Majority  rule,  26. 

Marshall,    Chief  Justice,  164. 

Marriage,  214,  215. 

Mercenany  service,  '172-175. 

Monopolies  in  transportation,  230. 

Napoleon,  points  out  need  of  S  ,  34; 
withdrawal  of  the  army,  35 ;  deals 
with  the  new  cantons,   37-42. 

Neufchatel,  45,  54,  167. 

Nobility,  title  of,  177. 

Pardon,  162. 

Parties,  city  and  country,  17,  18. 

Pensions,  foreign,  176. 

Post  and  telegraph,  194. 

Power,  distribution  of,  56-96;  re-distri- 
bution in  England,  74;  source  of, 
80;  drift  of  in  Germany,  86;  ex- 
pressly delegated,  93-96. 

President,  of  legislative  bodies,  iii; 
election  by  minority,  129;   election 


in  Argentine  Republic,  129;  in  Co- 
lombia, 129;  cjualtfications,  130;  elec- 
tion in  Mexico,  130;  term  131;  case 
of  vacancy,  132;  conditions  of  re- 
election, 133;  in  S.,  134. 

Press,  freedom  of,  215,  217. 

Privileges  in  transportation,  230. 

Public  works,  41,  246,  249. 

Railroads,  247-249;  tax  on,  201. 

Referendum,  1 17-120. 

Relations,  foreign,  164;  internal,  178. 

Representatives,  65,  81,  83,  104. 

Revenue,  ip^. 

Rights,  political,  48,  223,  203-205. 

St.  Gallen,  24,  28,  32,   36,   37,  41,  45. 

St.  Gothard,  2,  228. 

Salaries  of  legislators,  112,  113. 

Sanitary  regulations,  252. 

Sarnen,  league  of,  52. 

Schaffhausen,  i,  2,  19. 

Schwyz,  5,  13,  45,  52. 

Secession,  43;  of  1846,  53. 

Secretary,  42;  general,  50. 

Senate,  1798,  30;  in  federations,  105. 

Senators,  106^  io8,  112. 

Settlement,  right  of,  207. 

Shipping,  231. 

Solothurn,  18,  19,  40,  52. 

Sonderbund,  52. 

Speaker,  m-112. 

Spirit  Monopoly  Bill,  196. 

Sovereign,  57,  60,  61. 

Sovereignty,  29,  30,  46,  47,  253. 

Stantz,  agreement  at,  18. 

Suffrage,  conditions  of,  99,  208. 

Supreme  Court,  74,  140,  141,  145,  149. 
Switzerland,  critical  period,  19;  terri- 
tory I ;  as  ally,   21;  as  independent 
StiR,  21;  aristocracies  in,  81. 
Tariff  system,  226;  tax,  military,    197. 
Telegraph,  238-240. 
Territorial  changes,  20,  164,  165. 
Territory  guaranteed,  165. 
Thurgau,  5,  37,  52. 
Ticino,  i,  2,  7,  37,  45,  228. 
Titles,  foreign,  176,  177. 
Tolls  for  public  works,  227, 
Treaty  power,  171. 
Troops,  26,  40,  42. 
Unterwalden,  5,  13,  45,  52. 
Uri,  5,  13,  45,  52,  63,  228,  230. 
Vaud,  36,  37,  41,  45. 

Vorort,  24,  49. 

Wallis,  5,  45,  52,  228. 

Weights  and  measures,  241. 

Worship,  right  of,  212,  213. 

Zug,  5,  17,  32,  45. 

Zurich,  14,  17,  28,  40,  41,   43,  49,   52. 


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